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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): December 23, 2024

 

FREYR Battery, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

333-274434

 

93-3205861

(State or other jurisdiction

of incorporation)

  (Commission File Number)   (IRS Employer
Identification No.)

 

6&8 East Court Square, Suite 300,

Newnan, Georgia 30263

(Address of principal executive offices, including zip code)

 

Registrant's telephone number, including area code: (678) 632-3112

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

  Trading Symbol(s)   Name of each exchange on which registered
Common Stock, $0.01 par value   FREY   The New York Stock Exchange
Warrants, each whole warrant exercisable for one Common Stock at an exercise price for $11.50 per share   FREY WS   The New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

 

 

Introductory Note

 

On December 23, 2024, FREYR Battery, Inc. (“FREYR” or the “Company”) completed the previously announced transactions contemplated under a transaction agreement (the “Transaction Agreement”) entered into with Trina Solar (Schweiz) AG, an entity organized under the laws of Switzerland (the “Seller”) on November 6, 2024 for the acquisition of all legal and beneficial ownership in the shares of capital stock of Trina Solar US Holding Inc., a Delaware corporation, which owns, directly or indirectly, all legal and beneficial ownership in the shares of capital stock of, or other ownership, membership or equity interest in (a) Trina Solar US Manufacturing Holding Inc., a Delaware corporation (“TUMH”), (b) Trina Solar US Manufacturing Module Associated Entity 1, LLC, a Texas limited liability company (“TUMA”), (c) Trina Solar US Manufacturing Module 1, LLC, a Texas limited liability company (“TUM 1”), and (d) Trina Solar US Manufacturing Cell 1, LLC, an Oklahoma limited liability company (“TUM 2”, and together with TUMH, TUMA and TUM 1, the “Acquired Companies”) (and such acquisition, the “Purchase”). Capitalized terms used in this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them in the Transaction Agreement.

 

Pursuant to the Transaction Agreement, among other things, the following occurred:

 

Consideration. At the Closing, in consideration for the Purchase, FREYR (i) paid to the Seller $100.0 million cash consideration and (ii) issued to the Seller (a) a $50.0 million repayment of an intercompany loan (together with accrued and unpaid interest); (b) 15,437,847 shares of common stock, par value $0.01 per share of FREYR (the “Common Stock”) (the “Share Consideration”); (c) a $150.0 million one percent (1%) per annum senior unsecured note due in five (5) years (the “Note Instrument”); and (d) an $80.0 million seven percent (7%) unsecured convertible note due in five (5) years (the “Convertible Note Instrument”), which, subject to CFIUS approval, is convertible in up to two conversions into 30.4 million shares of Common Stock, in aggregate (the “Conversion Shares”). The Second Conversion is also subject to the Requisite Stockholder Approval.

 

Related Commercial Agreements: With respect to the development, operation and services of the solar module manufacturing facility located in Wilmer, Texas with an output capacity of 5 GW, owned by TUM 1, and currently under construction (the “Solar Module Manufacturing Facility”), at the Closing:

 

oFREYR Related Agreements: the Company and (A) certain parties affiliated to the Seller, entered into that certain (i) Module Operational Support Agreement, (ii) IP License Agreement and (B) TUM 1 entered into that certain IP Sublicense Agreement; and

 

oTUM 1 Related Agreements: TUM 1 and certain affiliated parties to Seller entered into that certain (i) Sales Agency and Aftermarket Services Agreement, (ii) Amended and Restated Sales Agreement (Solar Cells), (iii) Amended and Restated Sales Agreement (Polysilicon), (iv) Amended and Restated Supply Contract, (v) Amendment No. 1 to Intellectual Property License Agreement, and (vi) Amended and Restated Trademark License Agreement.

 

Financing Related Agreements: With respect to the existing project finance of TUM 1 in connection with the construction of the Solar Module Manufacturing Facility, at the Closing:

 

oTUM 1 entered into that certain Consent, Waiver and Amendment No. 1 to that certain $235 million senior secured credit facility by and among TUM 1, as borrower, the lenders from time to time party thereto, HSBC Bank USA, N.A., as administrative and collateral agent, Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A., as joint lead arrangers, Standard Chartered Bank, as green loan coordinator, dated July 16, 2024 (the “Credit Agreement Amendment”), and

 

othe Company entered into that certain (i) Equity Contribution Agreement, (ii) Loan Commitment Agreement, and (iii) Direct Agreement – Operational Support Agreement

 

Other Agreements: At the Closing, the Company and Seller entered into that certain (i) Cooperation Agreement and (ii) a Registration Rights Agreement.

 

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Item 1.01 Entry into a Material Definitive Agreement.

 

Note Instrument

 

At Closing, FREYR and the Seller executed the Note Instrument.

 

As previously disclosed, pursuant to the Note Instrument, FREYR will repay the principal amount in cash with quarterly repayments of $7.5 million per quarter starting on the first calendar quarter ending after the one-year anniversary of the date of issuance of the Note Instrument and $30.0 million at maturity. Interest will accrue quarterly in arrears at one percent (1%) per annum and will be paid in cash on a quarterly basis starting at Closing. FREYR, in its discretion, may prepay the Note Instrument, in whole or in part, at any time prior to maturity date without premium or penalty.

 

The foregoing description of the Note Instrument does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Note Instrument, a copy of which is filed as Exhibit 10.2 hereto and incorporated by reference herein.

 

Convertible Note Instrument

 

At Closing, FREYR and the Seller executed the Convertible Note Instrument.

 

Within five (5) business days of obtaining CFIUS approval, the Convertible Note Instrument shall partially convert into approximately 12.5 million shares of FREYR’s Common Stock (the “First Conversion”). Within five (5) business days of obtaining Requisite Stockholder Approval, the remaining balance of the Convertible Note Instrument shall convert into approximately 18.0 million additional shares of FREYR’s Common Stock. Interest shall accrue quarterly at seven percent (7%) per annum commencing on the issuance date, subject to certain adjustments; however, the Convertible Note Instrument shall never convert to more than approximately 30.4 million shares of Common Stock.

 

The foregoing description of the Convertible Note Instrument does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Convertible Note Instrument, a copy of which is filed as Exhibit 10.3 hereto and incorporated by reference herein.

 

Cooperation Agreement

 

At Closing, FREYR and the Seller entered into a Cooperation Agreement. As previously disclosed, pursuant to such agreement, among other things, for so long as the Seller holds 15.4 million shares of FREYR’s Common Stock, it shall be entitled to designate for nomination one (1) director to FREYR’s board of directors (the “FREYR Board” or the “Board”) and (ii) for as long as the Seller holds fifteen percent (15%) or more of FREYR’s Common Stock, it shall be entitled to designate for nomination two (2) directors to the FREYR Board. For so long as there is at least one (1) director designated by the Seller on the FREYR Board and at least one (1) such director is an independent director in accordance with the applicable law and stock exchange listing rules and determined by the Board, the FREYR Board shall appoint a director designated by the Seller to each of (i) the nominating and corporate governance committee and (ii) the compensation committee.

 

Pursuant to the Cooperation Agreement, the Seller further agrees to customary standstill provisions for so long as the Seller holds the Share Consideration. In addition, subject to limited exceptions, the Seller shall not transfer any shares of Common Stock during a one-year lock-up period and shall not transfer a certain number of shares for so long as the Credit Agreement is outstanding. For as long as the Seller holds securities in the Company, it shall also be entitled to certain anti-dilution rights.

 

Pursuant to the Cooperation Agreement, Seller nominated Mingxing Lin as a director to the FREYR Board and the Board approved his appointment effective at Closing.

 

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The foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Cooperation Agreement, a copy of which is filed as Exhibit 10.5 hereto and incorporated by reference herein.

 

Registration Rights Agreement

 

At Closing, FREYR and the Seller entered into a Registration Rights Agreement, pursuant to which FREYR shall grant the Seller certain registration rights on Form S-3 or other forms of registration statements, including Form S-1, as available, with respect to the shares of Common Stock issued to the Seller pursuant to the Transaction Agreement and the Convertible Note Instrument.

 

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the form of the Registration Rights Agreement, a copy of which is filed as Exhibit 10.4 hereto and incorporated by reference herein.

 

Preferred Stock Purchase Agreement

 

At Closing, in connection with the Company’s efforts to finance in part the construction, commissioning and ramp-up related to the solar cell manufacturing facility to be developed by TUM 2 (the “Solar Cell Manufacturing Facility”), including general corporate purposes related to the assets to be acquired by the Company pursuant to the transaction, FREYR issued a first tranche of 5 million shares of its non-voting preferred stock (the “Preferred Stock”) to certain funds and accounts managed by Encompass Capital Advisors LLC (collectively, the “Purchasers”) in exchange for $50.0 million pursuant to the preferred stock purchase agreement entered into by and among FREYR and the Purchasers on November 6, 2024 (the “Preferred Stock Purchase Agreement”).

 

Following the Closing and at FREYR’s sole discretion upon proceeding to a final investment decision on TUM 2, the Company may issue an additional second tranche of 5 million shares of Preferred Stock to the Purchasers in exchange for $50.0 million.

 

As previously disclosed, the Preferred Stock has a term of three (3) years from the Closing Date and a conversion price of $2.50 per share of Common Stock or such other price as is used in the conversion of the Preferred Stock. FREYR will redeem the Preferred Stock at maturity at par value plus any accrued and unpaid interest. The Preferred Stock will rank senior to the Common Stock but junior to all debt obligations of the Company and will have a liquidation preference equal to $10.00 per share of Preferred Stock plus accrued but unpaid dividends. FREYR also agreed to provide certain registration rights with respect to the Preferred Stock and the shares of Common Stock underlying the Preferred Stock. The Preferred Stock carries 6% cash interest, accruing on the funding of the first tranche and payable in arrears (i) on the dividend date 18 months after the first tranche funding and (ii) every six months after such dividend payment date. Other customary representations and warranties, closing conditions and terms were included in the Preferred Stock Purchase Agreement.

 

The foregoing description of the Preferred Stock Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Preferred Stock Purchase Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated by reference herein.

 

Commercial Agreements

 

Module Operational Support Agreement

 

At Closing, FREYR, as manufacturer, and Trina Solar (U.S.), Inc., a Delaware corporation (“TUS”), as service provider, an affiliate of Seller, entered into a module operational support agreement dated December 23, 2024 (the “Module Operational Support Agreement”).

 

Pursuant to the Module Operational Support Agreement, TUS will provide advisory; technical; manufacturing, quality, and risk management; smart manufacturing system; equipment operation and maintenance; training; warehouse management and logistics services, and any additional services as the parties agree to in connection with the Solar Module Manufacturing Facility.

 

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The Module and Operational Support Agreement further contemplates that FREYR shall remain responsible for all aspects of management and operation of the Solar Module Manufacturing Facility other than the services provided by TUS including, but not limited to strategic planning, financial management, manufacturing, quality controls, maintenance, human resources, and contract and vendor management.

 

In consideration for the services provided by TUS, FREYR shall pay TUS an annual fee equal to five percent (5%) of the adjusted EBITDA of the relevant calendar year being the EBITDA of TUM 1 or for TUM 1 and TUM 2, as applicable, minus the G&A Allocation and all costs contemplated under the Commercial Agreements (“EBITDA”). The G&A Allocation shall be $8.0 million until the final investment decision with respect to the solar cell manufacturing facility owned by TUM 2 and $15.0 million thereafter. All costs and expenses incurred by TUS and its affiliates in the provision of the services shall be reimbursed by FREYR.

 

The Module Operational Support Agreement shall be effective until the later of (i) the fifth (5th) anniversary of the Closing Date and (ii) the date on which all obligations under the Credit Agreement are repaid in full or otherwise discharged in accordance with the Credit Agreement.

 

The foregoing description of the Module Operational Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Module Operational Support Agreement, a copy of which is filed as Exhibit 10.6 hereto and incorporated by reference herein.

 

Sales Agency and Aftermarket Services Agreement

 

At Closing, TUS and TUM 1 entered into a sales agency and aftermarket services agreement dated December 23, 2024 (the “Sales Agency and Aftermarket Services Agreement”), pursuant to which TUS shall provide services to TUM 1 relating to the marketing and sales of solar photovoltaic energy generating modules manufactured by or for TUM 1 (the “Marketing and Sales Services”), branded with licensed trademarks pursuant to that certain Trademark License Agreement by and between Trina Solar Co., Ltd. an entity incorporated in the People’s Republic of China (“TCZ”) and TUM 1, effective as of July 16, 2024, as amended and restated in connection with the transaction (the “Trademark License Agreement”), and sold by TUM 1 in the U.S. (the “Covered Products”).

 

Pursuant to the Sales Agency and Aftermarket Services Agreement, TCZ shall be responsible for providing the product warranty set forth in such agreements to each of the Customers for all Covered Products. TUS shall further provide aftermarket support and warranty support services to customers who purchased the Covered Products in the U.S. (the “Customers”), including but not limited to, managing a call center for Customer complaints, responding to such complaints, cooperating with TUM 1 to inspect Covered and managing returned inventory and claim resolution for Covered Products that are in breach of a product warranty (the “Warranty and Aftermarket Support Fee”).

 

TUM 1 shall pay:

 

For Marketing and Sales Services: commissions for Covered Product sales (“Commissions”), determined as follows:

 

(i)for sales of Covered Products representing the first 1.5 GW of Solar Module Manufacturing Facility capacity, a commission equal to (a) $0.02 per watt if TUM 1 produced such Covered Products using solar cells supplied to TUM 1 from outside the U.S., and (b) $0.035 per watt if TUM 1 produced such Covered Products using solar cells supplied to TUM 1 from within the U.S.;

 

(ii)for sales of Covered Products representing any additional GW of solar module capacity a commission equal to (a) two percent (2%) of the sales price of such Covered Products, plus (b) for sales that exceeds the target price (reflecting a margin of twenty percent (20%)), an amount equal to fifty percent (50%) of the sales price in excess of the target price; and

 

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(iii)a bonus equal to five percent (5%) of the higher of (a) adjusted EBITDA of TUM 1 only, and (b) sixty percent (60%) of adjusted EBITDA for TUM 1 and TUM 2.

 

For the Warranty and Aftermarket Support Fee: one percent (1%) of the sales price.

 

The aggregate amounts owed by FREYR under (1) parts (i) and (ii) of the Commission under the Sales Agency and Aftermarket Services Agreement, (2) certain amounts due under the Intellectual Property License Agreement between TCZ and TUM 1 dated July 16, 2024, as amended by that certain Amendment No. 1 dated December 23, 2024 and (3) certain amounts due under the Amended and Restated Trademark License Agreement, dated December 23, 2024, between TUS and TUM 1, shall not exceed $200.0 million per calendar year.

 

The agreement shall be effective until the later of (i) the fifth (5th) anniversary of the effective date and (ii) the date on which all obligations under the Credit Agreement are repaid in full or otherwise discharged in accordance with the Credit Agreement.

 

The foregoing description of the Sales Agency and Aftermarket Services Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agency and Aftermarket Services Agreement, a copy of which is filed as Exhibit 10.7 hereto and incorporated by reference herein.

 

IP License Agreement

 

At Closing, TCZ, as licensor, and FREYR, as licensee, entered into an IP license agreement dated December 23, 2024 (the “IP License Agreement”), pursuant to which TCZ grants to FREYR: (i) a license to manufacture solar modules and solar cells (the “Licensed Products”) at the Solar Module Manufacturing Facility, or any other manufacturing facility owned by TUM 1 or its approved subsidiaries commissioned for the manufacture of solar modules or solar cells approved by TCZ in the U.S. (the “Approved Facilities”); and (ii) a license to access and use the licensed software for the operation of the Solar Module Manufacturing Facility (the “Licensed Software”).

 

These licenses grant, among other things, the right to FREYR to manufacture, distribute and/or sell the Licensed Products in the U.S., to operate the Approved Facilities and otherwise to receive any services provided by TCZ or its affiliates under the Commercial Agreements. Pursuant to the agreement and subject to certain limitations, TUM 1 and its approved subsidiaries (as defined in the IP License Agreement) shall be the exclusive manufacturer of solar modules in the U.S. during the first two (2) years after Closing.

 

FREYR shall have the right to sublicense the license and rights granted to it under the agreement to TUM 1; provided it remains a direct or indirect, wholly-owned subsidiary of FREYR. TUM 1 shall be permitted to sublicense its sublicense and rights to TUM 2 and to other permitted subsidiaries or third parties with TCZ’s prior written consent, provided it remains a direct or indirect, wholly-owned subsidiary of FREYR. At closing, FREYR and TUM 1 entered into an IP sublicense agreement dated December 23, 2024, to effect the sublicense of the IP License to TUM 1.

 

TCZ shall be responsible for filing, prosecuting and maintaining all patents pursuant to this agreement and shall bear all such costs.

 

The agreement shall have an initial term of five (5) years; FREYR may extend the term for additional five (5) year terms at its discretion.

 

The foregoing description of the IP License Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the IP License Agreement, a copy of which is filed as Exhibit 10.8 hereto and incorporated by reference herein.

 

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Financing Related Agreements

 

Amended Credit Agreement

 

On July 16, 2024, TUM 1 entered into that certain $235.0 million senior secured credit facility by and among TUM 1, as borrower, the lenders from time to time party thereto, HSBC Bank USA, N.A., as administrative and collateral agent, Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A., as joint lead arrangers, Standard Chartered Bank, as green loan coordinator (the “Credit Agreement”), which provides for a term loan facility maturing December 31, 2029, the proceeds of which will be used for funding the development, construction, and operation of the Solar Module Manufacturing Facility owned by TUM 1. Loans under the facility bear interest at an annual rate equal to, at the option of TUM 1, (a) SOFR plus 350 bps per annum or (b) the base rate plus 250 basis points per annum.

 

In connection with Closing, the parties to the Credit Agreement entered into a certain Consent, Waiver and Amendment No. 1 to the Credit Agreement, dated as of December 23, 2024 (the “Credit Agreement Amendment No. 1” and, the Credit Agreement, the “Amended Credit Agreement”), pursuant to which, among other things, the parties to the Credit Agreement consented to:

 

(i)the change of control that would have otherwise been triggered by the Closing of the transaction;

 

(ii)the execution and delivery of by TUM 1, as borrower, of the (a) Sales Agency and Aftermarket Services Agreement, (b) Amended and Restated Sales Agreement (Solar Cells), (c) Amended and Restated Sales Agreement (Polysilicon), (d) Amended and Restated Supply Contract, (e) Amendment No. 1 to Intellectual Property License Agreement, (f) Amended and Restated Trademark License Agreement, and (g) Module Operational Support Agreement;

 

(iii)the termination of certain direct agreements pledging interest in certain material contracts of TUM 1 that are being terminated in connection with the Closing and the entry into a direct agreement in respect of the Module Operational Support Agreement; and

 

(iv)the termination of a previous equity contribution agreement and entry into a new equity contribution agreement and guaranty, in each case, as further described below.

 

The Amended Credit Agreement contains customary affirmative and negative covenants for transactions of this type, including limitations on incurring indebtedness, granting liens and guarantees, entering into certain material contracts, making restricted payments and financial covenants. The financial covenants included in the Amended Credit Agreement include: (i) a maximum 40:60 debt to equity ratio, which applies prior to the date on which the Solar Module Manufacturing Facility has been substantially completed and term conversion has been achieved pursuant to the terms of the Amended Credit Agreement (the “Conversion Date”) and (ii) on and after the Conversion Date, a minimum 1.20:1.00 debt service coverage ratio, in each case, that is tested at the end of each quarter and is subject to customary cure rights. Upon the occurrence of the Conversion Date, certain other terms of the Amended Credit Agreement change pursuant to its terms, including the commencement of amortization payments.

 

The Amended Credit Agreement contains customary distribution conditions and disbursement rules.

 

Further, the Amended Credit Agreement permits voluntary prepayments without premium or penalty, subject to customary notice requirements.

 

The Amended Credit Agreement also provides for a customary project finance security package, including pledges over (i) the units in certain Acquired Companies, including TUM 1, (ii) all assets of TUM 1, (iii) TUM 1’s interest in certain material contracts related to the operations of the Solar Module Manufacturing Facility, and (iv) construction, revenue, debt service reserve, insurance and loss proceeds, and distribution reserve accounts.

 

The foregoing description of the Amended Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement and Credit Agreement Amendment No. 1, copies of which are filed respectively as Exhibits 10.9, and 10.10 hereto and incorporated by reference herein.

 

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Equity Contribution Agreement

 

At Closing, FREYR, as sponsor, TUM 1, as borrower, TUMH, and HSBC Bank USA, N.A., as the administrative agent and the collateral agent, entered into an equity contribution agreement, dated December 23, 2024 (the “Equity Contribution Agreement”), pursuant to which until the Solar Module Manufacturing Facility achieves “Substantial Completion” (or equivalent term, as defined in the Retrofit EPC Contract (as defined in the Amended Credit Agreement) and the Facility Commissioning Date under each applicable Offtake Contract (as defined in the Amended Credit Agreement) has occurred (“COD”), to the extent no construction/term loans are available to TUM 1 under the Amended Credit Agreement to pay the Solar Module Manufacturing Facility’s costs, FREYR shall make equity contributions up to an amount equal to $125.0 million to the extent necessary to cause the Solar Module Manufacturing Facility to achieve COD.

 

The foregoing description of the Equity Contribution Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Equity Contribution Agreement, a copy of which is filed as Exhibit 10.11 hereto and incorporated by reference herein.

 

Loan Commitment Agreement

 

As a condition to the execution of the Equity Contribution Agreement and Credit Agreement Amendment No. 1 at Closing, certain of FREYR’s obligations under the Equity Contribution Agreement must be guaranteed by Trina Solar Energy Development PTE. Ltd., a Singapore private limited company (“TED”), an affiliate of Seller, pursuant to a guaranty in favor of the collateral agent (the “Guaranty”).

 

At Closing, FREYR and TED entered into a loan commitment agreement, dated December 23, 2024 (the “Loan Commitment Agreement”), pursuant to which, in the event that the collateral agent makes a demand for payment from time to time under the Guaranty, upon such payment from TED to the collateral agent, TED shall be deemed to have provided a loan to FREYR on the following terms and conditions: (i) the principal amount of such loan shall be the amount paid by TED to the collateral agent in response to such demand, (ii) such loan shall bear interest at a rate equal to the sum of (A) the applicable rate for SOFR loans pursuant to the Amended Credit Agreement and (B) 2%, payable quarterly in cash, (iii) the outstanding principal amount of each such loan shall be due and payable in full on the 364th day after the making of such loan, and (iv) the maximum loan amount that TED shall be required to provide to FREYR is $125.0 million.

 

The foregoing description of the Loan Commitment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Loan Commitment Agreement, a copy of which is filed as Exhibit 10.12 hereto and incorporated by reference herein.

 

Item 2.01 Completion of Acquisition or Disposition of Assets.

 

The disclosures under the Introductory Note of this Current Report on Form 8-K are incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The disclosure set forth under the heading “Financing Related Agreements” under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The disclosure set forth under the heading “Introductory Note” and above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The securities of the Company that may be issued in connection with the Transaction Agreement and Preferred Stock Purchase Agreement will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.

 

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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment of New Director

 

On December 22, 2024, the FREYR Board appointed Mingxing Lin as a director of the Company, effective December 23, 2024.

 

Mingxing Lin, 43, has served as director and Chief Strategy Officer of FREYR since December 2024. Mr. Lin has over 15 years of finance and multinational management experience. Prior to joining FREYR, Mr. Lin served as a manager and then deputy head at the Germany Project Team of China Development Bank in Frankfurt, Germany, from October 2010 to December 2020. Mr. Lin was a senior manager of China Everbright Bank Luxembourg Branch from January 2021 to May 2021. From June 2021 to January 2023, Mr. Lin served as an executive director at Fosun Management (Germany) GmbH in Frankfurt am Main, Germany. Since February 2023, Mr. Lin has served as the Head of Overseas Investment and Financing Center and Head of Finance of Overseas Joint Venture Business Unit of Trina Solar Energy Development Pte. Ltd. in Singapore. Mr. Lin received his Bachelor of Economics in Finance from Wuhan University in September 2004 and Bachelor of Science of Engineering in Materials Science and Engineering from Wuhan University of Technology in June 2004. In June 2006, he received his Master of Science of Engineering in Building Materials Science from Wuhan University of Technology. In February 2024, Mr. Lin received his EMBA in Business Administration from Frankfurt School of Finance and Management.

 

The Board believes Mr. Lin is qualified to serve on the FREYR Board due to his extensive business, finance, strategy and leadership experience.

 

As FREYR’s Chief Strategy Officer, Mr. Lin is not independent under the New York Stock Exchange’s listing standards and applicable law. In addition, Mr. Lin is employed by an affiliate of Trina Solar (Schweiz) AG and was appointed as a director by Trina Solar (Schweiz) AG under the Cooperation Agreement. There are no family relationships between Mr. Lin and any director, executive officer, or person nominated or chosen by the Company to become a director or executive officer. There are no additional related party transactions between the Company and Mr. Lin that are required to be disclosed pursuant to Item 404(a) of Regulation S-K.

 

Mr. Lin shall receive compensation from the Company related to his position as Chief Strategy Officer, and will receive no additional compensation for his service as a director of the Board. The Company expects that Mr. Lin will enter into the Company’s standard form of indemnification agreement for its directors and officers.

 

Item 7.01. Regulation FD Disclosure.

 

On December 23, 2024, the Company issued a press release announcing that the completion of transactions contemplated under the Transaction Agreement. A copy of the press release is attached hereto as Exhibit 99.1.

 

The information in this Item 7.01, including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act nor shall it be deemed incorporated by reference in any filling under the Securities Act, except as shall be expressly set forth by specific reference in such filing.

 

Item 9.01. Financial Statements and Exhibits.

 

(b) Pro forma financial information

 

The unaudited pro forma consolidated financial statements of the Company required by this Item 9.01(b) will be filed within the time required by Form 8-K.

 

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(d) Exhibits.

 

Exhibit No.   Description
2.1   Transaction Agreement by and among FREYR Battery, Inc. and Trina Solar (Schweiz) AG, dated as of November 6, 2024 (Incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on November 6, 2024).*/++
10.1   Preferred Stock Purchase Agreement by and between FREYR Battery, Inc. and certain funds and accounts managed by Encompass Capital Advisors LLC, dated as of November 6, 2024 (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on November 6, 2024). */++
10.2   Form of Note Instrument (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on November 6, 2024).
10.3   Form of Convertible Note Instrument (Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on November 6, 2024).
10.4   Form of Registration Rights Agreement (Incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on November 6, 2024)
10.5   Cooperation Agreement by and between FREYR Battery, Inc. and Trina Solar (Schweiz) AG, dated as of December 23, 2024.
10.6   Module Operational Support Agreement by and between FREYR Battery, Inc. and Trina Solar (U.S.), Inc. dated as of December 23, 2024.*
10.7   Sales Agency and Aftermarket Services Agreement by and between Trina Solar (U.S.), Inc. and Trina Solar US Manufacturing Module 1, LLC, dated as of December 23, 2024.*
10.8   IP License Agreement by and between Trina Solar Co., Ltd. and FREYR Battery, Inc., dated of December 23, 2024.*
10.9   Credit Agreement by and among Trina Solar US Manufacturing Module 1, LLC, as borrower, the lenders from time to time party thereto, HSBC Bank USA, N.A., as administrative and collateral agent, Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A., as joint lead arrangers, Standard Chartered Bank, as green loan coordinator, dated July 16, 2024.*
10.10   Credit Agreement Amendment No. 1 by and among Trina Solar US Manufacturing Module 1, LLC, as borrower, the lenders from time to time party thereto, HSBC Bank USA, N.A., as administrative and collateral agent, Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A., as joint lead arrangers, Standard Chartered Bank, as green loan coordinator, dated December 23, 2024.*
10.11   Equity Contribution Agreement by and among FREYR Battery, Inc., as sponsor, Trina Solar US Manufacturing Module 1, LLC, as borrower, Trina Solar US Manufacturing Holding Inc., and HSBC Bank USA, N.A., as administrative agent and collateral agent, dated December 23, 2024.*
10.12   Loan Commitment Agreement, by and between FREYR Battery, Inc. and Trina Solar Energy Development PTE. Ltd., dated December 23, 2024.*
99.1   Press release issued by FREYR Battery, Inc. on December 24, 2024.
104   Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

*Schedules and exhibits omitted pursuant to Item 601(a)(5) of Regulation S-K. FREYR will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request. FREYR may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules or exhibits so furnished.

 

++Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is not material and is the type of information that the registrant treats as private or confidential.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

  FREYR Battery, Inc.
       
  By: /s/ Daniel Barcelo
    Name:   Daniel Barcelo
    Title: Chief Executive Officer and Chairman of the Board of Directors

 

Dated: December 27, 2024 

 

 

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Exhibit 10.5

 

COOPERATION AGREEMENT

 

This Cooperation Agreement (this “Agreement”), dated as of December 23, 2024 (the “Effective Date”), is by and among Trina Solar (Schweiz), AG, a company organized under the laws of Switzerland (the “Stockholder”), and FREYR Battery, Inc., a Delaware corporation (the “Company”).

 

WHEREAS, the Company and the Stockholder have entered into a transaction agreement dated as of November 6, 2024, (the “Transaction Agreement”), pursuant to which, the Company has acquired from the Stockholder, directly or indirectly, certain U.S. solar manufacturing assets as further described in the Transaction Agreement (the “Transaction”) in exchange for the Purchase Price (as defined in the Transaction Agreement), including (i) 15,437,847 newly issued shares of Common Stock (the “Initial Investment”); (ii) the issuance of a convertible note in the aggregate principal amount of USD 80,000,000, which is convertible into 12,521,653 shares of Common Stock upon receipt of (1) CFIUS Approval and (2) a further 17,918,460 shares of Common Stock upon receipt of Company stockholder approval of the transactions contemplated thereby. Capitalized but not defined terms in this Agreement shall have the meanings set forth in the Transaction Agreement;

 

WHEREAS, the Closing has occurred as of the date hereof; and

 

WHEREAS, the Company and the Stockholder desire to enter into an agreement regarding the composition of the board of directors of the Company (the “Board”) and certain other matters, in each case, on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of and reliance upon the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the Stockholder and the Company agree as follows:

 

Section 1. Board of Directors.

 

(a) Trina Directors.

 

(i) For such time as the Stockholder, directly or indirectly, holds the Initial Investment, the Stockholder shall be entitled to designate for nomination by the Board one (1) director from time to time. If at any time the Stockholder beneficially owns, directly or indirectly, in the aggregate fifteen percent (15%) or more of all issued and outstanding shares of Common Stock, the Stockholder shall be entitled to designate for nomination by the Board two (2) directors (with such directors having the qualifications as set forth in Section 1(d)) from time to time (any director designated by the Stockholder pursuant to this Section 1(a)(i), the “Trina Director”). The Stockholder shall not be entitled to designate any Trina Directors if at any time the Stockholder ceases to hold, directly or indirectly, the entire Initial Investment.

 

(ii) Within two (2) Business Days following (1) the Effective Date, the Board and all applicable committees thereof shall take (or shall have taken) such actions as are necessary to appoint the first (1st) Trina Director as a member of the Board, and (2) the Conversion, the Board and all applicable committees thereof shall take (or shall have taken) such actions as are necessary to appoint the second (2nd) Trina Director as a member of the Board, each with an initial term expiring at the next annual meeting of stockholders of the Company at which directors of the Company are to be elected or removed following such appointment (the “Annual Meeting”).

 

(iii) The initial Trina Directors shall be Mingxing Lin following the Effective Date and such individual notified by the Stockholder to the Company to be appointed following the Conversion, provided that Trina has the right to change its director nominations by sending a written notice indicating such intention to the Company not less than ten (10) Business Days before the date of their appointment.

 

 

 

 

(b) Vacancies and Replacements.

 

(i) If the number of Trina Directors that the Stockholder has the right to designate to the Board is decreased pursuant to Section 1(a) (each such occurrence, a “Decrease in Designation Rights”), then:

 

(1) unless a majority of directors (with the Trina Directors abstaining) agree in writing that a Trina Director or Trina Directors shall not resign as a result of a Decrease in Designation Rights, the Stockholder shall use its reasonable best efforts to cause the appropriate number of Trina Directors that the Stockholder ceases to have the right to designate to serve as Trina Directors to offer to tender his, her or their resignation(s), and each of such Trina Directors so tendering a resignation, as applicable, shall resign within thirty (30) days from the date that the Stockholder incurs a Decrease in Designation Rights. In the event any such Trina Director does not resign as a director by such time as is required by the foregoing, the Stockholder as holder of shares of Common Stock, the Company and the Board, to the fullest extent permitted by law and, with respect to the Board, subject to its fiduciary duties to the Company’s stockholders, shall thereafter take all Necessary Action, including voting in accordance with Section 2(a), to cause the removal of such individual as a director; and

 

(2) the vacancy or vacancies created by such resignation(s) and/or removal(s) may be filled with one or more directors, as applicable, designated by the Board in its discretion.

 

(ii) The Stockholder shall have the sole right to request that one or more of its designated Trina Directors, as applicable, tender their resignations as Trina Directors of the Board, in each case, with or without cause at any time, by sending a written notice to such Trina Director and the Company’s Secretary stating the name of the Trina Director or Trina Directors whose resignation from the Board is requested (the “Removal Notice”). If the Trina Director subject to such Removal Notice does not resign within thirty (30) days from receipt thereof by such Trina Director, the Stockholder, the Company and the Board, to the fullest extent permitted by law and, with respect to the Board, subject to its fiduciary duties to the Company’s stockholders, shall thereafter take all Necessary Action, including voting in accordance with Section 2(a) to cause the removal of such Trina Director from the Board (and such Trina Director shall only be removed by the parties to this Agreement in such manner as provided herein).

 

(iii) Except with respect to a Decrease in Designation Rights subject to Section 1(b)(i), the Stockholder shall have the exclusive right to designate a replacement Trina Director for nomination or election by the Board to fill vacancies created by death, disability, retirement, resignation, removal (with or without cause) of the Trina Directors, or otherwise by designating a successor for nomination or election by the Board to fill the vacancy of the Trina Directors created thereby on the terms and subject to the conditions of Section 1(a).

 

(c) Annual Meeting Nominees. The Company shall include the Trina Director(s) as director nominee(s) on its slate for election at each Annual Meeting for as long as the Stockholder has the right to designate Trina Directors to the Board. The Board and all applicable committees thereof shall take such actions as are necessary so that the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the Annual Meeting shall include the Trina Director(s).

 

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(d) Trina Director Information. Any Trina Director designated, including those designated pursuant to Section 1(a)(iii), by the Stockholder shall be eligible to serve as a director in accordance with the organizational documents of the Company, applicable law and the listing and corporate governance rules and regulations of the New York Stock Exchange, as determined by the Board (to the extent such determination with respect to the New York Stock Exchange corporate governance rules and regulations is within the Board’s discretion to determine). The Trina Director(s) agree(s) to provide and the Stockholder shall use its reasonable best efforts to ensure the Trina Director(s) provide(s) to the Company (x) information requested by the Company that is required to be disclosed in a proxy statement or other filing under any applicable law, stock exchange rule, or listing standard, or as may be requested or required by any regulatory or governmental authority having jurisdiction over the Company or its Affiliates and (y) such other information reasonably requested by the Company generally applicable to directors of the Company.

 

(e) New Director Agreements, Arrangements, and Understandings. The Stockholder represents, warrants, and agrees that neither it nor any of its Affiliates (i) has paid or will pay any compensation to the Trina Director in connection with their nomination to or service on the Board or any committee thereof or (ii) has or will have any agreement, arrangement or understanding, written, or oral, with the Trina Director in connection with such individual’s nomination to or service on the Board or any committee thereof, in each case except with respect to any employment arrangements between the Trina Directors and the Stockholder or its Affiliates.

 

(f) Company Policies. The parties acknowledge that the Trina Director, upon election or appointment to the Board, will be governed by the same protections and obligations regarding confidentiality, conflicts of interest, related person transactions, fiduciary duties, codes of conduct, trading, and disclosure policies, director resignation policy, stock ownership guidelines, and other governance guidelines and policies of the Company as other directors of the Company (collectively, the “Company Policies”), and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation, and fees, as are applicable to all non-management directors of the Company and the Trina Director shall deliver executed copies of customary onboarding materials applicable to all non-executive directors of the Board. The Company represents and warrants that any changes to the Company Policies, or new Company Policies, will be adopted in good faith and not for the purpose of undermining or conflicting with the arrangements contemplated hereby. The Company acknowledges and agrees that (i) no Company Policy shall in any way inhibit any Board members (including the Trina Directors) from engaging in dialogue with the Stockholder so long as they comply with applicable law, their confidentiality obligations to the Company, their fiduciary duties to the Company, the Company’s Corporate Governance Guidelines in their capacity as Board members, and, with respect to the Trina Directors, this Agreement, (ii) no Company Policy shall be violated by the Trina Directors receiving indemnification and/or reimbursement of expenses from the Stockholders or their respective Affiliates in connection with his or her service or action as an employee or advisor of the Stockholder or an Affiliate of the Stockholder (and not in connection with his or her service or action as a director of the Company), and (iii) no Company Policy shall apply to the Stockholder (excluding the Trina Directors) and their Affiliates as a result of the Trina Directors’ appointments to, or service on, the Board, including Company Policies with respect to trading in the Company’s securities (other than the Trina Directors), as the Stockholder and their Affiliates are not directors or employees of the Company; provided, that this sentence does not in any way limit and shall not be deemed to exclude the Stockholder and their Affiliates from any limitations or obligations under applicable law, including federal securities laws.

 

(g) Board Committees. For so long as there is at least one (1) Trina Director on the Board and at least one (1) Trina Director is an independent director in accordance with the applicable law and listing rules and determined by the Board, the Board shall appoint one (1) Trina Director to each of the Nominating and Corporate Governance Committee and the Compensation Committee.

 

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Section 2. Cooperation.

 

(a) Voting. In connection with each Annual Meeting (and any adjournments or postponements thereof) at which the Stockholder has the right to designate Trina Directors to the Board, so long as the Trina Director or Directors have been nominated and recommended by the Board for re-election as a director or directors, the Stockholder will cause all of the Common Stock that the Stockholder or any of its Affiliates (or those under common Control) has the right to vote (or to direct the vote), as of the record date for such Annual Meeting, to be present in person or by proxy for quorum purposes and to be voted at such Annual Meeting (or at any adjournment or postponement thereof) (i) in favor of each director nominated and recommended by the Board for election at such Annual Meeting (including the Trina Director) and (ii) otherwise in accordance with the recommendations by the Board on all other nominations, proposals, resolutions, or business that may be the subject of stockholder action (including any proposal or resolution related to the removal of any director of the Board); provided, however, that the Stockholder and its Affiliates shall be permitted to vote in their sole discretion on any proposal with respect to any Extraordinary Transaction that was not initiated in breach of Section 2(b); provided, that in the event that both Institutional Shareholder Services and Glass Lewis & Co. (including any successors thereof) issue a voting recommendation that differs from the voting recommendation of the Board with respect to any Company-sponsored proposal submitted to stockholders at a shareholder meeting (other than with respect to any matter relating to the Board, including any nomination, proposal, resolution or business in connection with the nomination and election of directors to the Board, the removal of directors from the Board, the size of the Board or the filling of vacancies on the Board), the Stockholder and its Affiliates shall be permitted to vote in accordance with any such recommendation.

 

(b) Standstill. From the date hereof until such date as the Stockholder ceases to hold, directly or indirectly, the entire Initial Investment (the “Standstill Period”),the Stockholder will not, and will cause its Affiliates and its and their respective Representatives acting on their behalf (collectively with the Stockholder, the “Restricted Persons”) to not, directly or indirectly, without the prior written consent, invitation, or authorization of the Company or the Board:

 

(i) acquire, or offer, or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of record or beneficial ownership of or economic exposure to any Voting Securities or engage in any swap or hedging transaction, or other derivative agreement of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Stockholder, together with its Affiliates, having beneficial ownership of, a Net Long Position in, or aggregate economic exposure to more than nineteen and nine-tenths percent (19.9%) of the Voting Securities outstanding at such time;

 

(ii) alone or in concert with any one or more Third Parties, (A) call or seek to call (publicly or otherwise) a meeting of the Company’s stockholders or act by written consent in lieu of a meeting (or call or seek to call for the setting of a record date therefor), (B) seek election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any stockholder proposal relating to the Company, the Board or any of its committees or support, in any forum open to any Third Party stockholder, any such proposal, (D) seek (including through any “withhold” or similar campaign) the removal of any member of the Board , except as expressly set forth in Section 1 with respect to the Trina Director, (E) seek any change in the number or identity of directors of the Company or the filling of any vacancy of the Board other than as provided under Section 1 of this Agreement, or (F) conduct, call for, or publicly support any other stockholder who conducts or calls for any referendum of stockholders of the Company;

 

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(iii) engage in any “solicitation” (as such term is used in the proxy rules of the SEC, but including, notwithstanding anything to the contrary in Rule 14a-2 under the Exchange Act, solicitations of ten (10) or fewer stockholders that would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-2(b)(2) under the Exchange Act) of one or more proxies or consents with respect to the election or removal of one or more directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in any such solicitation of proxies or consents;

 

(iv) disclose to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or any vote as to any matter submitted to a stockholder vote during the Standstill Period (it being understood that instructing a Third Party to implement any such vote or consent in a ministerial manner in accordance with this Agreement would not be a violation of this provision), except that such disclosure may be made with respect to any Extraordinary Transaction that were not initiated in breach of this Section 2(b), or to the extent legally required or permitted by the prior written consent of the Company;

 

(v) make or submit to the Company or any of its Affiliates any proposal, announcement, statement or request, or offer for or relating to (with or without one or more conditions), either alone or in concert with others, any Extraordinary Transaction, either publicly or in a manner that would reasonably be expected to result in or require public disclosure by the Company or any of the Restricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company);

 

(vi) make or submit (either publicly or privately) any proposal, announcement, statement or request, either alone or in concert with others, for or with respect to (A) any change in the capitalization, capital allocation policy or dividend policy of the Company or sale, spin-off, split-off or other similar separation of one or more business units, (B) any other change to the Board or the Company’s management or corporate or governance structure, (C) any waiver, amendment or modification to the Company’s Amended and Restated Certificate of Incorporation or Bylaws, (D) causing the Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (E) causing the Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;

 

(vii) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other Person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities or (B) conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board), other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise expressly permitted by this Agreement;

 

(viii) form, join, knowingly encourage or knowingly participate in or act in concert with any Group with respect to any Voting Securities, other than solely with Affiliates of the Stockholder with respect to Voting Securities now or hereafter owned by them;

 

(ix) enter into any voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely between or among the Stockholder and its Affiliates or (C) granting any proxy in any solicitation approved by the Board and consistent with the recommendation of the Board;

 

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(x) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange-traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the Company’s securities and would, in the aggregate or individually, result in the Stockholder ceasing to have a Net Long Position in the Company;

 

(xi) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company, any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent the Stockholder from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making any counterclaim with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with validly issued legal process, or (F) bringing litigation against the Company to enforce any provision of the Transaction Agreement or any Related Agreements (as defined in the Transaction Agreement) or otherwise bringing disputes in connection with the Transaction;

 

(xii) make any disclosure, communication, announcement or statement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, submission, or proposal with respect to the Board, the Company, its management, policies, affairs, strategy, operations, or financial results, any of its securities or assets or this Agreement, except in a manner consistent with the provisions of this Agreement; provided, that this Section 2(b)(xii) shall not prevent the Trina Director from disclosing his views privately to the Board;

 

(xiii) enter into any negotiation, agreement, arrangement, or understanding (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(b);

 

(xiv) enter into or maintain any economic, compensatory or pecuniary agreement, arrangement or understanding (written or oral) with any director of the Company or nominee for director of the Company; provided, that this Section 2(b)(xiv) shall not apply to the Trina Director for any economic, compensatory or pecuniary agreement, arrangement or understanding (written or oral) entered into and not related to the Trina Director’s service on the Board;

 

(xv) advise, knowingly encourage, support, instruct, or influence any Person with respect to any of the matters covered by this Section 2 or with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1, or seek to do so; or

 

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(xvi) make any request or submit any proposal to amend or waive any of the terms of this Agreement (including this subclause), in each case publicly or that would reasonably be expected to result in a public announcement or disclosure of such request or proposal or give rise to a requirement to so publicly announce or disclose such request or proposal;

 

provided, that the restrictions in this Section 2(b) shall terminate automatically upon the earliest of the following: (i) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Trina Directors in accordance with Section 1(a), a failure to include the Trina Directors in the slate of director nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to each Annual Meeting in accordance with Section 1(b), or a failure to issue the Press Release in accordance with Section 5 upon ten (10) Business Days’ written notice by the Stockholder to the Company if such breach has not been cured within such notice period, provided, that the Stockholder is not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (ii) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that, if consummated, would result in the acquisition by any Person or Group of more than fifty percent (50%) of the Voting Securities or assets having an aggregate value exceeding fifty percent (50%) of the aggregate market capitalization of the Company; and (iii) the commencement of any tender or exchange offer (by any Person or Group other than the Stockholder or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Person or Group of more than fifty percent (50%) of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 2(b)) will prohibit or restrict any Restricted Person from (I) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party, (II) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person, (III) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company, or (IV) communicating with the Company privately to any director, the Executive Chairperson of the Board, the Company’s Chief Executive Officer, Chief Financial Officer or Chief Legal Officer, and its advisors and employees (in accordance with the Company Policies) regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests does not or would not reasonably be expected to require public disclosure of such communications or requests by the Company or any of the Restricted Persons.

 

(c) Lock-Up.

 

(i) The Stockholder shall not Transfer any shares of Common Stock that are held by the Stockholder during the period commencing from the date hereof and ending on the earlier of (a) the first (1st) anniversary of the date hereof, and (b) the date the Company receives a CFIUS Turndown (as defined in the Transaction Agreement) (the “Lock-Up Period”).  Notwithstanding the foregoing but subject to Section 2(c)(ii), if during the Lock-up Period, Encompass Capital Advisors LLC notifies the Company that it must transfer shares because its aggregate investment in the Lock-Up Shares (as defined in the Encompass Lock-Up Agreement) constitutes more than fifteen percent (15%) of the Encompass Capital Advisors LLC’s assets under management, as determined by Encompass Capital Advisors LLC in its sole discretion (the “Permitted Window”), then the Stockholder may Transfer any shares it holds during the Permitted Window.

 

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(ii) In furtherance and not in limitation of Section 2(c)(i), for so long as the Credit Agreement, dated July 16, 2024, by and among TUM 1, as borrower, HSBC Bank USA, N.A., as administrative agent, HSBC Bank USA, N.A., as collateral agent (the “Credit Agreement”) is outstanding, the Stockholder shall hold (1) at all times prior to the earlier of (i) the receipt of CFIUS Approval and (ii) September 30, 2025, 15,437,847 shares of Common Stock, as adjusted for any reverse stock splits and (2) thereafter, nine and nine tenth percent (9.9%) of shares of all the issued and outstanding Common Stock ((1) and (2) the “Minimum Stock Amount”). Notwithstanding the foregoing, nothing in this Section 2(c)(ii) shall prevent the Stockholder from holding less than the Minimum Stock Amount if required in connection with a CFIUS Turndown.

 

(iii) During the Lock-Up Period, subject to applicable law, the Stockholder shall be permitted to Transfer shares of Common Stock to any Affiliates of the Stockholder subject to the execution and delivery by such Affiliate to the Company of a joinder agreement substantially in the form attached hereto as Exhibit A, and provided, further, that if such Affiliate ceases to be an Affiliate of the Stockholder, then the shares of Common Stock transferred to and held by such Affiliate shall immediately be transferred back to the Stockholder or an Affiliate of the Stockholder at such time.

 

(iv) If any Transfer is made or attempted contrary to the provisions of this Agreement, such Transfer shall be null and void ab initio, and the Company shall refuse to recognize any such transferee of the shares of Common Stock as one of its equity holders for any purpose. In order to enforce this Section 2(c)(iii), the Company may impose stop-transfer instructions with respect to the shares of Common Stock of the Stockholder (and any permitted transferees and assigns thereof) until the end of the Lock-Up Period.

 

(v) During the Lock-Up Period, each book entry evidencing the shares of Common Stock held by the Stockholder shall include appropriate restrictions to reflect the fact that such shares of Common Stock are subject to the restrictions on Transfer set forth in this Agreement.

 

(vi) For the avoidance of any doubt, the Stockholder shall retain all of its rights as a stockholder of the Company with respect to the shares of Common Stock during the Lock-Up Period, including the right to vote any shares of Common Stock.

 

(d) Stockholder’s Rights. In addition to any voting requirements contained in the organizational documents of the Company, the Company shall not Transfer all or substantially all of the property and assets of the Company in the United States, taken as a whole (whether by merger, consolidation or otherwise) without the prior written approval of the Stockholder until the earlier of (i) such time as the Stockholder ceases to hold, directly or indirectly, the entire Initial Investment, and (ii) the end of the Lock-Up Period.

 

(e) Anti-Dilution Rights.

 

(i)  Subject to applicable law, so long as the Stockholder holds securities in the Company, in the event that the Company decides to issue any new Voting Securities (“Capital Raising Transaction”), the Stockholder shall have the right, but not the obligation, to purchase, on the same terms and conditions as the other participants in such issuance, such number of newly issued Voting Securities, so that the Stockholder’s proportionate ownership of Voting Securities following the Capital Raising Transaction will be the same as before the Capital Raising Transaction (the “Capital Raising Anti-Dilution Right”).

 

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(ii) The Company shall give written notice to the Stockholder (an “Issuance Notice”) of any proposed issuance of Voting Securities, (1) in the case of an underwritten public offering or a private offering made to Qualified Institutional Buyers (as such term is defined in Rule 144A under the Securities Act) or non-U.S. Persons (as such term is defined under Rule 902(k) under the Securities Act) for resale pursuant to Rule 144A or Regulation S under the Securities Act, thirty (30) Business Days prior to the launch of such offering and (2) in all other cases, no later than twenty (20) Business Days prior to the proposed issuance date. The Issuance Notice shall set forth the following terms and conditions of the proposed issuance: (a) the number of the securities to be issued or sold and the percentage of the outstanding Voting Securities such issuance or sale would represent; (b) the class and material terms of the securities to be issued or sold; (c) the proposed issuance or sale date; and (d) the anticipated price.

 

(iii)  The Capital Raising Anti-Dilution Right shall be exercisable by delivery of a written notice by the Stockholder to the Company no later than the fifteen (15th) Business Day following receipt of any Issuance Notice (as extended pursuant to Section 2(e)(iv), the “Capital Raising Issuance Deadline”), specifying the number of securities to be purchased by the Stockholder in connection with such Capital Raising Transaction, which written notice shall, except to the extent expressly contemplated by Section 2(e)(iv), constitute a binding agreement of the Stockholder to purchase such number of securities on the terms and conditions set out in the Issuance Notice (the “Capital Raising Acceptance Notice”).

 

(iv) In the event that any material terms and conditions set out in the Issuance Notice, including the price and number of Voting Securities to be issued, are modified after the date of the Capital Raising Acceptance Notice, then the Company shall deliver to the Stockholder as soon as reasonably practicable after the Company agrees to such change, an updated Issuance Notice, which shall include a reasonable description of such differences and, in that case, the Capital Raising Issuance Deadline shall be seventy-two (72) hours following the date on which the Stockholder receives such updated Issuance Notice.

 

(v) The closing of any purchase by the Stockholder shall be consummated concurrently with the consummation of the Capital Raising Transaction; provided, that any such closing shall be extended beyond the closing of the Capital Raising Transaction to the extent necessary (1) to obtain any required approval of a Governmental Entity or (2) to the extent the Company’s stockholder approval is required under the applicable stock exchange rules, in which case the Company shall use their respective reasonable best efforts to obtain any such approval(s).

 

(vi) If the Stockholder shall not have delivered a Capital Raising Acceptance Notice to the Company by the Capital Raising Issuance Deadline, the Stockholder shall be deemed to have waived all of its rights under this Section 2(e) with respect to the purchase of the securities in such Capital Raising Transaction, provided, however, such waiver only refers to such specific Capital Raising Transaction as indicated in the Capital Raising Acceptance Notice, and under no circumstances does it represent the Stockholder’s waiver of its rights under this Section 2(e) for any future Capital Raising Transaction.

 

(vii) In the event that the Stockholder fails to exercise the Capital Raising Anti-Dilution Right by the Capital Raising Issuance Deadline, the Company shall thereafter be entitled during the period of ninety (90) days following Capital Raising Issuance Deadline to sell the Voting Securities not elected to be purchased by the Stockholder pursuant to this Section 2(e), (1) at a price that is not ten percent (10%) less than the price set out in the Issuance Notice and (2) upon other terms and conditions not materially more favorable in the aggregate to the purchasers of such Voting Securities than those set out in the Issuance Notice, as determined in good faith by the Board (a “Third Party Issuance”). In the event the Company has not sold such Voting Securities by the Capital Raising Issuance Deadline, the Company shall not thereafter issue or sell such Voting Securities without first offering such Voting Securities to the Stockholder in the manner provided pursuant to this Section 2(e). If such Third Party Issuance is subject to regulatory approval, the Capital Raising Issuance Deadline in respect of such Third Party Issuance shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than two hundred and seventy (270) days from the date of the Issuance Notice.

 

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(viii) The provisions of this Section 2(e) shall not apply to any issuances of Voting Securities by the Company (1) to its directors or employees for compensatory purposes pursuant to an equity incentive plan approved by the Board, (2) as consideration in a bona fide direct or indirect merger, acquisition, strategic transaction, partnership or alliance or similar transaction that is approved by the Board or any other strategic or commercial transaction that is approved by the Board in which the Company issues Voting Securities, or (3) in connection with any pro rata stock split, combination, stock dividend, recapitalization, reorganization or any similar transaction in each case, in which the voting and economic rights of the shares of Common Stock are preserved.

 

(ix) Notwithstanding the foregoing, in the event the Board reasonably determines in good faith that there is a bona fide business need to consummate an issuance of Voting Securities promptly without first complying with this Section 2(e), the Company may issue Voting Securities to one or more Persons without first complying with the terms of Section 2(e) (such an issuance an “Emergency Issuance”), as promptly as is reasonably practicable following such Emergency Issuance (and in any event within ten (10) Business Days), at the Company’s election, (1) the purchasers of such Voting Securities shall offer to sell to the Stockholder the portion of such purchased Voting Securities for which the Stockholder would have been entitled to subscribe had the Company complied with the foregoing provisions of this Section 2(e) or (2) the Company shall offer to issue an incremental amount of Voting Securities to the Stockholder such that following the issuance and purchase of such Voting Securities, the Stockholder’s proportionate ownership of Voting Securities following the Emergency Issuance will be the same as before the Emergency Issuance, in each case, at a price no more than that paid by such purchasers and on substantially the same, and no less favorable in the aggregate, terms, with any such amendments as the Stockholder may agree to, as those applicable to such purchasers.

 

Section 3. Representations and Warranties of the Company. The Company represents and warrants to the Stockholder that: (i) the Company has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated by this Agreement; (ii) this Agreement has been duly and validly authorized, executed, and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and, assuming the valid execution and delivery hereof by each of the other parties, is enforceable against the Company in accordance with its terms, except as enforcement of this Agreement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws generally affecting the rights of creditors and subject to general equity principles; (iii) the execution, delivery, and performance of this Agreement by the Company does not require the approval of the stockholders of the Company; and (iv) the execution, delivery and performance of this Agreement by the Company does not and will not (A) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to the Company or (B) result in any breach or violation of or constitute a default (or an event that, with notice or lapse of time or both, could constitute a breach, violation or default) under or pursuant to, result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.

 

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Section 4. Representations and Warranties of the Stockholder. The Stockholder represents and warrants to the Company that: (a) the Stockholder has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated by this Agreement; (b) this Agreement has been duly and validly authorized, executed and delivered by the Stockholder, constitutes a valid and binding obligation and agreement of the Stockholder and, assuming the valid execution and delivery hereof by each of the other parties, is enforceable against the Stockholder in accordance with its terms, except as enforcement of this Agreement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles; (c) the execution, delivery and performance of this Agreement by the Stockholder does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to the Stockholder or (ii) result in any breach or violation of or constitute a default (or an event that, with notice or lapse of time or both, could constitute a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Stockholder is a party or by which it is bound.

 

Section 5.  Public Announcement. Not later than four business days following the Effective Date, the Company shall issue a press release (the “Press Release”) and shall file with the SEC a Current Report on Form 8-K (the “Form 8-K”) disclosing its entry into this Agreement and including a copy of this Agreement and the Press Release as exhibits thereto. The Company shall provide the Stockholder with a copy of such Form 8-K prior to its filing with the SEC and shall consider any timely comments of the Stockholder or its representatives. Neither of the Company or any of its Affiliates nor the Stockholder or any of its Affiliates shall make any public statement regarding the subject matter of this Agreement, this Agreement or the matters set forth in the Press Release, unless required by relevant NYSE or SEC rules and regulations, prior to the issuance of the Press Release without the prior written consent of the other party; provided that, nothing herein shall prohibit any public statement that is substantially consistent with previous press releases, including the Press Release, public disclosures or public statements made by the parties in compliance with this Section 5.

 

Section 6. Definitions. For purposes of this Agreement:

 

(a) the term “Affiliate” of any Person means another Person that directly or indirectly through one of more intermediaries Controls, is Controlled by or is under common Control with, such first Person;

 

(b) the terms “beneficial owner” and “beneficially own” have the meanings set forth in Rule 13d-3 under the Exchange Act, except that a Person will also be deemed to be the beneficial owner of all shares of the Company’s Common Stock that (i) such Person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to the exercise of any right in connection with any securities or any agreement, arrangement or understanding (whether or not in writing), regardless of when such rights may be exercised and whether they are conditional and (ii) such Person or any of such Person’s Affiliates has or shares the right to vote or dispose;

 

(c) the term “Business Day” means each day that is not (i) a Saturday, Sunday, or (ii) other day on which banking institutions located in Shanghai, People’s Republic of China, or Wilmington, Delaware are closed or obligated by law or executive order to close;

 

(d) the term “CFIUS Approval” means (a) the Committee on Foreign Investment in the United States and each member agency thereof acting in such capacity (“CFIUS”) has concluded that the Conversion (as defined in the Transaction Agreement) is not a “covered transaction” and not subject to review under Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (the “DPA”), (b) CFIUS has issued a written notice that it has completed a review or investigation of the notification voluntarily provided pursuant to the DPA with respect to the Conversion, and has concluded all action under the DPA or (c) if CFIUS has sent a report to the President of the United States requesting the President’s decision and (i) the President has announced a decision not to take any action to suspend or prohibit the Conversion or (ii) having received a report from CFIUS requesting the President’s decision, the President has not taken any action after fifteen (15) days from the earlier of the date the President received such report from CFIUS or the end of the investigation period.

 

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(e) the term “Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Securities, by contract, or otherwise. “Controlled” and “under common Control with” have correlative meanings;

 

(f) the term “Common Stock” means the Company’s common stock, par value $0.01 per share;

 

(g) the term “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder;

 

(h) the term “Extraordinary Transaction” means any tender offer, exchange offer, merger, consolidation, acquisition, sale of all or substantially all assets, sale, spin-off, split-off or other similar separation of one or more business units, business combination, recapitalization, restructuring, reorganization, liquidation, separation, dissolution or similar extraordinary transaction involving the Company or one or more of its direct or indirect subsidiaries and joint ventures or any of their respective securities or assets, in each case, for the avoidance of doubt, excluding (i) the Transaction (including all transactions contemplated thereby and the finalization and entry into any agreements necessary to effect the Transaction); and (ii) the non-voting preferred stock issued pursuant to that certain preferred stock purchase agreement by and among the Company and certain funds and accounts managed by Encompass Capital Advisors LLC, dated November 6, 2024;

 

(i) the term “Governmental Entity” means any (a) federal, state, provincial, local or other government (U.S. or non-U.S.), (b) any federal, state, provincial, local, or other governmental or supra-national entity, regulatory or administrative authority, taxing authority, agency, department, board, division, instrumentality or commission, educational agency, political party, body, or judicial or arbitral body, board, tribunal, or court (U.S. or non-U.S.), (c) any public international organization (e.g., the World Bank, the Red Cross, etc.), (d) any industry self-regulatory authority or (e) any business, entity, or enterprise owned or controlled by any of the foregoing;

 

(j) the term “Group” has the meaning set forth in Section 13(d)(3) of the Exchange Act;

 

(k) the term “Necessary Action” means, with respect to a specified result, all commercially reasonable actions required to cause such result that are within the power of a specified Person, including (i) voting or providing a written consent or proxy with respect to the equity securities owned by the Person obligated to undertake the necessary action, (ii) voting in favor of the adoption of stockholders’ resolutions and amendments to the organizational documents of the Company, (iii) executing agreements and instruments, and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result;

 

(l) the term “Net Long Position” has the meaning set forth in Rule 14e-4 under the Exchange Act;

 

(m) the terms “Person” or “Persons” shall be interpreted broadly to include any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature;

 

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(n) the term “Representatives” means a party’s Affiliates, directors, principals, members, general partners, managers, officers, employees, agents, advisors and other representatives;

 

(o) the term “SEC” means the U.S. Securities and Exchange Commission;

 

(p) the term “Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder;

 

(q) the term “Third Party” means any Person that is not a party to this Agreement or an Affiliate thereof, a director or officer of the Company, or legal counsel to any party to this Agreement; and

 

(r) the term “Transfer” shall mean the (i) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii) above.

 

(s) the term “Voting Securities” means the Common Stock and any other Company securities entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other contingencies; provided that, as pertains to any obligation of the Stockholder or any other Restricted Person (including under Section 2(b)), “Voting Securities” will not include any securities contained in any index fund, exchange-traded fund, benchmark fund or broad basket of securities that may contain or otherwise reflect the performance of, but does not primarily consist of, securities of the Company.

 

Section 7. Notices. All notices, consents, requests, instructions, approvals, and other communications provided for herein and all legal process in regard to this Agreement will be in writing and will be deemed delivered given and received (a) when (x) delivered in person or (y) transmitted by email (with written confirmation of completed transmission other than any automated reply), (b) on the third business day following the mailing thereof by certified or registered mail (return receipt requested) or transmission by email, as applicable or (c) when delivered by an express courier (with written confirmation of delivery) to the parties hereto at the following addresses (or to such other address as such party may have specified in a written notice given to the other parties); provided that any notice delivered pursuant to clauses (a)(x), (b) or (c) of this Section 7 is also contemporaneously delivered to the email address of such party set forth below (for the avoidance of doubt, such email shall not in and of itself be deemed delivery given and received of such communications and legal process):

 

If to the Company:

 

FREYR Battery, Inc.
6&8 East Court Square, Suite 300,
Newnan, Georgia 30263
Attention: Compliance Officer

E-mail: compliance-officer@freyrbattery.com

 

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with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom (UK) LLP

22 Bishopsgate

London, EC2N 4BQ

Attention: Denis Klimentchenko
  Danny Tricot
Email: denis.klimentchenko@skadden.com
  danny.tricot@skadden.com

 

If to the Stockholder:

 

Trina Solar (Schweiz), AG

Address: No.2 Tianhe Road, Trina PV Industrial Park, Xinbei District,

Changzhou, Jiangsu, China.

Attention: hua.liu@trinasolar.com

 

with a copy (which shall not constitute notice) to:

 

Dorsey & Whitney LLP

51 West 52nd Street

New York, NY 10019-6119

Attention: Catherine X. Pan-Giordano
  Anthony W. Epps
  David J. Mack
Email: pan.catherine@dorsey.com
  epps.anthony@dorsey.com
  mack.david@dorsey.com

 

At any time, any party may, by notice given in accordance with this Section 7 to the other party, provide updated information for notices under this Agreement.

 

Section 8. Expenses. All fees, costs and expenses incurred in connection with this Agreement and all matters related to this Agreement will be paid by the party incurring such fees, costs or expenses.

 

Section 9. Specific Performance; Remedies; Venue; Waiver of Jury Trial.

 

(a) The Company and the Stockholder acknowledge and agree that irreparable injury to the other party would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable by the remedies available at law (including the payment of money damages). It is accordingly agreed that the Company and the Stockholder will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in addition to any other remedy to which they are entitled at law or in equity. FURTHERMORE, THE COMPANY AND THE STOCKHOLDER AGREE: (1) THE NON-BREACHING PARTY WILL BE ENTITLED TO INJUNCTIVE AND OTHER EQUITABLE RELIEF, WITHOUT PROOF OF ACTUAL DAMAGES; (2) THE BREACHING PARTY WILL NOT PLEAD IN DEFENSE THERETO THAT THERE WOULD BE AN ADEQUATE REMEDY AT LAW AND (3) THE BREACHING PARTY WAIVES THE POSTING OF A BOND OR OTHER SECURITY UNDER ANY APPLICABLE LAW, IN THE CASE THAT ANY OTHER PARTY SEEKS TO ENFORCE THE TERMS BY WAY OF EQUITABLE RELIEF.

 

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(b) This Agreement will be governed in all respects, including validity, interpretation, and effect, by the laws of the State of Delaware without giving effect to the choice of law principles of such state. The Company and the Stockholder (i) irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, the federal or other state courts located in Wilmington, Delaware) for any action or proceeding based on, relating to, or arising in connection with this Agreement, (ii) agrees that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from any such court, (iii) agrees that any action or proceeding based on, relating to, or arising in connection with this Agreement or the transactions contemplated by this Agreement shall be brought, tried, and determined only in such courts, (iv) waives any claim of improper venue or any claim that those courts are an inconvenient forum and (v) agrees that it will not bring any action based on, relating to, or arising in connection with this Agreement or the transactions contemplated by this Agreement in any court other than such courts. The parties to this Agreement agree that the delivery of process or other papers based on, relating to, or arising in connection with any such action or proceeding in the manner provided in Section 7 or in such other manner as may be permitted by applicable law as sufficient service of process, shall be valid and sufficient service thereof; provided that such process or other papers based on, relating to, or arising in connection with any such action or proceeding is also contemporaneously delivered to the email address of such party set forth in Section 7 hereof (for the avoidance of doubt, such email shall not in and of itself constitute effective service of process).

 

(c) EACH OF THE PARTIES, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED ON, RELATING TO OR ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. NO PARTY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.

 

Section 10. Severability. If, at any time subsequent to the Effective Date, any provision of this Agreement is held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision will be of no force and effect, but the illegality, voidness or unenforceability of such provision will have no effect upon the legality or enforceability of any other provision of this Agreement.

 

Section 11. Termination. This Agreement will terminate upon the earlier to occur of (i) the expiration of the Standstill Period or (ii) any material breach of this Agreement by the parties hereto upon ten (10) Business Days’ written notice by the non-breaching party to the breaching party if such breach has not been cured by the end of such notice period; provided that the non-breaching party is not in material breach of this Agreement at the time such notice is given or during the notice period. Upon such termination, this Agreement shall have no further force and effect Notwithstanding anything to the contrary in the foregoing part of this Section 11, Section 6 to Section 16 shall survive termination of this Agreement, and no termination of this Agreement shall relieve any party of liability for any breach of this Agreement arising prior to such termination.

 

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Section 12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both or all of which shall constitute the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. For the avoidance of doubt, no party shall be bound by any contractual obligation to the other parties until all counterparts to this Agreement have been duly executed by each of the parties and delivered to the other parties (including by means of electronic delivery).

 

Section 13. No Third-Party Beneficiary. This Agreement is solely for the benefit of the Company and the Stockholder and is not enforceable by any other Person. No party to this Agreement may assign its rights or delegate its obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other parties in their respective sole discretions, and any assignment in contravention hereof will be null and void.

 

Section 14. No Waiver. No failure or delay by any party in exercising any right or remedy under this Agreement will operate as a waiver thereof or of any breach of any provision hereof, nor will any single or partial waiver thereof preclude any other or further exercise thereof or the exercise of any other right or remedy under this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No waiver shall be effective unless in writing, executed by the waiving party.

 

Section 15. Entire Understanding; Amendment. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, memoranda, arrangements, and understandings, whether written or oral, between the parties, or any of them, with respect to the subject matter of this Agreement. This Agreement may be amended only by an agreement in writing executed by the Company and the Stockholder.

 

Section 16. Interpretation and Construction. The Company and the Stockholder acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same after having had an adequate opportunity to seek the advice of said counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties will be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguity in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by the Company and the Stockholder, and any controversy over any interpretation of this Agreement will be decided without regard to events of drafting or preparation. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” When a reference is made in this Agreement to any Section, Exhibit or Schedule such reference shall be to a Section, Exhibit or Schedule of this Agreement, unless otherwise expressly indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The words “hereof,” “herein”, “hereto”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “will” shall be construed to have the same meaning as the word “shall.” The word “or” is not exclusive. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, law, rule or statute defined or referred to herein means, unless otherwise indicated, such agreement, instrument, law, rule or statute as from time to time amended, modified or supplemented, except that references to specified rules promulgated by the SEC shall be deemed to refer to such rules in effect as of the date of this Agreement.

 

[Signature pages follow]

 

16

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the parties as of the date hereof.

 

  TRINA SOLAR (SCHWEIZ), AG
   
  By: /s/ Mingxing Lin
    Name:  

Mingxing Lin

    Title: Authorized Signatory

 

[Signature Page to Cooperation Agreement]

 

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the parties as of the date hereof.

 

  FREYR BATTERY, INC.
   
  By: /s/ Daniel Barcelo
    Name:  Daniel Barcelo
    Title: Authorized Signatory

 

[Signature Page to Cooperation Agreement]

 

 

 

 

EXHIBIT A

 

FORM OF JOINDER AGREEMENT

 

The undersigned is executing and delivering this Joinder Agreement pursuant to the Cooperation Agreement, dated as of December 23, 2024 (the “Cooperation Agreement”), by and among [Trina Solar (U.S.) Holding Inc., a Delaware corporation] (the “Stockholder”), and FREYR Battery, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Cooperation Agreement.

 

By executing this Joinder Agreement and delivering it to each of the parties to the Cooperation Agreement (and any other party who may from time to time become a signatory to the Cooperation Agreement), the undersigned hereby agrees to become a party to, to be bound by, to be subject and to comply with the terms and conditions of the Cooperation Agreement, in the same manner as if the undersigned were an original signatory to the Cooperation Agreement and to be entitled to enforce the Cooperation Agreement in its capacity as a “Stockholder” as of the date hereof for as long as the undersigned remains an Affiliate of the Stockholder.

 

The undersigned hereby represents, warrants and undertakes to each of the other parties to the Cooperation Agreement (and any other stockholder of the Company who may from time to time become a signatory to the Cooperation Agreement) that the representations and warranties set forth in Section 4 of the Cooperation Agreement, including any undertakings under the Cooperation Agreement, shall be deemed to be given on the date of this Joinder Agreement and shall be deemed to refer to this Joinder Agreement as well as the Cooperation Agreement.

 

Accordingly, the undersigned has executed and delivered this Joinder Agreement as of the [●] of [●], [●].

 

   
  Signature of Affiliate
   
   
  Print Name of Affiliate
   
   
  Street Address
   
   

 

 

 

 

 

Exhibit 10.6

 

MODULE OPERATIONAL SUPPORT AGREEMENT

 

This MODULE OPERATIONAL SUPPORT AGREEMENT (this “Agreement”) dated as of December 23, 2024 (the “Effective Date”) is by and between FREYR Battery, Inc. a Delaware corporation (“Manufacturer”) and Trina Solar (U.S.), Inc., a Delaware corporation (“Service Provider”). Manufacturer and Service Provider may be referred to together as the “Parties” and each individually as a “Party”.

 

RECITALS

 

(A)WHEREAS, Service Provider and Trina Solar US Manufacturing Module 1 LLC, a Texas limited liability company and an Affiliate of Manufacturer (“TUM 1”) are parties to that certain Agreement for the Provision of Services (the “Prior TUS Services Agreement”), dated July 16, 2024, pursuant to which Service Provider provided certain services to TUM 1;

 

(B)WHEREAS, TUM 1 and Trina Solar Co., Ltd., a company incorporated in the People’s Republic of China and an Affiliate of Service Provider (“TCZ”), are parties to that certain Agreement for the Provision of Services (the “Prior TCZ Services Agreement” and together with the Prior TUS Services Agreement, the “Prior Agreements”), dated July 16, 2024, pursuant to which TCZ provided certain services to TUM 1;

 

(C)WHEREAS, Trina Solar (Schweiz) AG, an entity organized under the Laws of Switzerland and an Affiliate of Service Provider (“TSW”), and Manufacturer entered into that certain Transaction Agreement dated November 6, 2024 (the “Transaction Agreement”), and, as a result of the transactions contemplated in the Transaction Agreement, TUM 1 will no longer be an indirect subsidiary of TSW and will become an indirect subsidiary of Manufacturer upon the closing of the transactions contemplated in the Transaction Agreement (the “Closing”);

 

(D)WHEREAS, under Section 6.9 of the Transaction Agreement, TSW and Manufacturer agreed to negotiate in good faith, prior to the Closing, to replace the Prior Agreements substantially on the terms set forth in the Term Sheet for Module Operational Support Agreement set forth on Schedule A-8 to the Transaction Agreement; and

 

(E)WHEREAS, each of Manufacturer and Service Provider agree to replace the Prior Agreements, on behalf of itself and its Affiliates, on the terms and conditions set forth herein and agree to enter into this Agreement effective as of the Closing.

 

NOW, THEREFORE, in consideration of the terms and conditions set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed by both Parties, and intending to be legally bound hereby, the Parties agree as follows:

 

1Definitions . Capitalized terms not otherwise defined herein have the meanings set forth below.

 

1.1Adjusted EBITDA” means for TUM 1 or for TUM 1 and TUM 2, as applicable, the sum of (i) consolidated net income, determined in accordance with GAAP, plus (ii) without duplication and to the extent deducted in determining the consolidated net income, in each case, determined in accordance with GAAP, the sum of (A) consolidated interest expense, (B) consolidated income Tax expense and (C) all amounts attributed to depreciation or amortization less (iii) the G&A Allocation less (iv) to the extent not taken into account in calculating consolidated net income, all costs and expenses contemplated by the Commercial Agreements including the 5-plus GW Commissions (as defined in the Sales Agency Agreement), the Warranty and Aftermarket Support Fees (as defined in the Sales Agency Agreement) and the Services Cost and Expenses but excluding, the Service Fee and the Bonus Commissions (as defined in the Sales Agency Agreement).

 

 

 

1.2Affiliate” of any Person means another Person that directly or indirectly through one of more intermediaries Controls, is Controlled by or is under common Control with, such first Person.

 

1.3Amended IP License Agreement” means the Intellectual Property License Agreement between TCZ and TUM 1 dated July 16, 2024, as amended by that certain Amendment No. 1 to be executed on or before the Closing Date by TCZ and TUM 1.

 

1.4Benefits Claim” means any claim for employment benefits by Service Provider Personnel against Manufacturer or by Manufacturer personnel against Service Provider in connection with this Agreement.

 

1.5Business Day” means each day that is not (a) a Saturday, Sunday, or (b) other day on which banking institutions located in Shanghai, People’s Republic of China, New York, New York, are or obligated by Law or executive order to close.

 

1.6Closing Date” means the date on which the Closing occurs in accordance with the Transaction Agreement.

 

1.7Commercial Agreements” means (i) this Agreement; (ii) the Amended IP License Agreement; (iii) the Solar Cells Sales Agreement; (iv) the Polysilicon Sales Agreement; (v) the IP License Agreement; (vi) the IP Sublicense Agreement; (vii) the Trademark License Agreement; (viii) the Sales Agency Agreement; (ix) the TUS Offtake Agreement, (x) the Solar Cells Operational Support Agreement; and (xi) the Solar Wafer Sales Agreement.

 

1.8Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled” and “under common Control with” have correlative meanings.

 

1.9Credit Agreement” means that certain Credit Agreement, dated July 16, 2024, by and among TUM 1, as borrower, HSBC Bank USA, N.A., as administrative agent, HSBC Bank USA, N.A., as collateral agent, and the other lenders from time to time party thereto, as amended from time to time.

 

1.10Encompass Stock Purchase Agreement” means that certain Convertible Series A Preferred Stock Purchase Agreement, dated as of November 6, 2024, entered into by and between FREYR and the Purchasers listed on Schedule I thereto.

 

1.11Employment Claim” means a Personal Injury Claim and Benefits Claim.

 

1.12Facility Investment Decision” means the decision by Manufacturer to commence construction of the Solar Cell Manufacturing Facility under the Encompass Stock Purchase Agreement. For avoidance of doubt, the date on which the Facility Investment Decision is deemed to be made for purposes of this Agreement will be the date such decision is made under the Encompass Stock Purchase Agreement.

 

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1.13G&A Allocation” means (i) eight million U.S. dollars (8,000,000 U.S. dollars) until the date on which the Facility Investment Decision is made by FREYR and (ii) fifteen million U.S. dollars (15,000,000 U.S. dollars) thereafter.

 

1.14GAAP” means generally accepted accounting principles in the United States, as in effect on the date or for the period with respect to which such principles are applied.

 

1.15Governmental Authority” means any nation or government; any state, municipality or other political subdivision thereof; and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, taxing, regulatory, administrative or other similar functions of, or pertaining to, governance; and any executive official thereof.

 

1.16Intellectual Property” means any and all intellectual property, industrial property rights and rights in confidential information of every kind and description throughout the world, including all U.S. and foreign (i) patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, (ii) trademarks, service marks, names, corporate names, trade names, domain names, logos, slogans, trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (including all registrations and applications for registration of the foregoing), (iii) copyrights (including all registrations, applications for registration and renewal rights) and copyrightable subject matter, (iv) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing, (v) trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, formulae, models, and methodologies, (vi) rights of publicity, privacy, and rights to personal information, (vii) moral rights and rights of attribution and integrity and (viii) all rights in the foregoing and in other similar intangible assets.

 

1.17IP License Agreement” means the Intellectual Property License Agreement, to be executed on or before the Closing Date, between TCZ, as licensor, and FREYR, as licensee.

 

1.18“IP Sublicense Agreement” means IP Sublicense Agreement, to be executed on or before the Closing Date, between FREYR, as sublicensor, and TUM 1, as sublicensee.

 

1.19Knowledge” means and its cognates mean, with regard to Service Provider, the actual knowledge of Steven Zhu and Michael Nelson, after reasonable inquiry.

 

1.20Law” means any U.S. or non-U.S. federal, state, provincial, local or other constitution, law, statute, ordinance, rule, directive, regulation, published administrative position, policy or principle of common law issued, enacted, adopted, promulgated, implemented or otherwise put into legal effect by or under the authority of any Governmental Authority and any judgments, decisions, orders and awards made in respect of the foregoing, including for the avoidance of doubt any stock exchange rules.

 

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1.21Person” means any individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).

 

1.22Personal Injury Claim” means any claim of personal injury or death brought by Service Provider Personnel against Manufacturer, or Manufacturer personnel against Service Provider in connection with this Agreement.

 

1.23Polysilicon Sales Agreement” means the Amended and Restated Sales Agreement (Polysilicon), to be executed on or before the Closing Date, between TVNW, as buyer, and TUM 1, as seller, amending and restating the Intercompany Sales Agreement between TVNW and TUM 1, dated July 16, 2024.

 

1.24Sales Agency Agreement” means the Sales Agency and Aftermarket Services Agreement, to be executed on or before the Closing Date, between Service Provider, as sales agent, and TUM 1, as manufacturer, amending, restating and renaming the Marketing and Service Agreement between Service Provider and TUM 1 dated July 16, 2024.

 

1.25Solar Cell Operational Support Agreement” means the Solar Cell Operational Support Agreement, to be executed after the Closing Date, between the Service Provider, as service provider, and FREYR, as manufacturer.

 

1.26Solar Cells Sales Agreement” means the Amended and Restated Sales Agreement (Solar Cells), to be executed on or before the Closing Date, between TED, as seller, and TUM 1, as buyer, amending and restating the Intercompany Sales Agreement between TED and TUM 1 dated July 16, 2024.

 

1.27Solar Cell Manufacturing Facility” means the manufacturing facility to be developed and constructed by TUM 2, or any other Affiliate of TUM 1 or Manufacturer, after Closing, to be located in the United States.

 

1.28Solar Module Manufacturing Facility” means the manufacturing facility owned indirectly by Manufacturer located at 1200 North Sunrise Road, Wilmer, Texas.

 

1.29Solar Modules” means the solar photovoltaic energy generating modules manufactured by or on behalf of Manufacturer at the Solar Module Manufacturing Facility using solar cells and other components.

 

1.30Solar Wafer Sales Agreement” means the Sales Agreement (Solar Wafers) to be executed after the Closing Date between TED, as supplier, and TUM 2, as buyer.

 

1.31Tax” means any income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added, transfer, franchise, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent, including employer and employees’ contributions), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible or intangible), environmental or windfall profit tax, escheat or unclaimed property, custom duty, tariff, or other tax, governmental fee or other like assessment or charge in the nature of a tax, together with any interest or any penalty or addition to tax or additional amount (whether disputed or not) imposed by any Governmental Authority responsible for the imposition of any such tax (domestic or foreign).

 

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1.32Third Partymeans any Person other than Manufacturer, Service Provider, and their respective Affiliates.

 

1.33Third-Party Service Provider” means a Third Party engaged by Service Provider to perform a portion of the Services, other than an Affiliate of Service Provider.

 

1.34TED” means Trina Solar Energy Development Pte. Ltd, a company organized under the Laws of the Republic of Singapore.

 

1.35Trademark License Agreement” means the Amended and Restated Trademark License Agreement, to be executed on or before the Closing Date, between Service Provider and TUM 1, amending, restating, replacing and renaming the Trademark License Agreement between Parent and TUM 1 dated July 16, 2024.

 

1.36TUM 2” means Trina Solar US Manufacturing Cell 1, LLC, a limited liability company organized under the Laws of Oklahoma.

 

1.37TUS Offtake Agreement” means the Supply Contract, to be executed on or before the Closing Date, between TUM 1, as supplier, and Service Provider, as purchaser, amending and restating the Supply Agreement between TUM 1 and Service Provider dated July 16, 2024.

 

1.38TVNW” means Trina Solar (Viet Nam) Wafer Company Limited, a company organized under the Laws of Vietnam.

 

2Services

 

2.1Provision of Services. During the Term and subject to the terms and conditions of this Agreement; in support of Manufacturer undertaking its Manufacturer Responsibilities, Manufacturer is engaging Service Provider to provide to, and Service Provider agrees to provide to, Manufacturer the services, functions and responsibilities for the operation of the Solar Module Manufacturing Facility (the “Services”) in accordance with the schedules set forth herein (the “Services Schedules”). Following Closing, the Operational Committee may propose updates and adjustments to the Services Schedules from time to time to reflect changes required for the operation of the Solar Module Manufacturing Facility to the Parties. If the Parties agree with such proposed updates, they shall execute an updated Service Schedule.

 

(i)Advisory services for construction, as further described on Schedule C;

 

(ii)Technical services, as further described on Schedule D;

 

(iii)Manufacturing management, quality management and risk management advisory services, as further described on Schedule E;

 

(iv)Smart manufacturing system services, as further described on Schedule F;

 

(v)Equipment operation and maintenance services, as further described on Schedule G;

 

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(vi)Specialty facilities maintenance services, as further described on Schedule H;

 

(vii)Training services, as further described on Schedule I;

 

(viii)Advisory services for procurement and supporting materials (excluding solar cells and poly products) purchasing assistance through a procurement platform (the “Procurement Platform”), as further described on Schedule J; and

 

(ix)Advisory services for warehouse management and logistics, as further described on Schedule K;

 

notwithstanding anything herein to the contrary, the Services do not include any Manufacturer Responsibilities and Service Provider will not have the power to contract for or bind the Manufacturer.

 

2.2Additional Services. During the Term, Manufacturer may request in writing that Service Provider provide additional services that are not otherwise provided for under this Agreement (the “Additional Services”). The Parties shall cooperate in good faith to agree on the terms, pursuant to which any such Additional Services will be provided by Service Provider shall execute an Additional Services Schedule and Service Provider shall provide a Revised Rolling Forecast to account for any such Additional Service in accordance with Section 2.3(ii). Unless the Additional Services Schedule for Additional Services provides otherwise, Manufacturer shall reimburse Service Provider for Services Costs and Expenses (as defined herein) incurred in the provision of such Additional Services in the manner set forth in Section 6.3 and the fee for such Additional Services will be the Service Fee as determined in Section 6.2 or, if applicable, in Section 6.4. Any such Additional Services shall constitute Services under this Agreement and be subject in all respects to the provisions of this Agreement as if fully set forth on a Services Schedule as of the Effective Date. Notwithstanding the foregoing, Service Provider shall have no obligation to agree to provide Additional Services, provided that Service Provider may not unreasonably decline to provide an Additional Service.

 

2.3Rolling Forecast ; Exclusion of Services

 

(i)During the Term, Service Provider will prepare and deliver to Manufacturer a non-binding, rolling, 12-month forecast of the estimated Services Costs and Expenses (as defined herein), on a monthly basis, including a reasonable detail with respect to such estimated Costs and Expenses, for such periods, and such other financial and operational metrics as maybe agreed upon by the Parties in writing (the “Rolling Forecast”). The Rolling Forecast represents Service Provider’s good faith estimates of the matters covered by the Rolling Forecast but is not binding and does not limit Manufacturer’s obligation to pay Services Costs and Expenses when due and payable.

 

(ii)Promptly, and within ten (10) Business Days, of becoming aware that any forecast of the Services Costs and Expenses in the relevant Rolling Forecast will need to be modified by fifteen percent (15%) or more (including with respect to actual Services Costs and Expenses exceeding any such forecast), including as a result of agreeing to any Additional Services, the Service Provider shall notify the Manufacturer in writing setting out Service Provider’s good faith estimate of the revised forecast of the Service Cost and Expense for the relevant Service or Additional Service, together with reasonable supporting detail, including to the extent known to the Service Provider the reasons for needing to modify the Rolling Forecast (the “Revised Rolling Forecast”).

 

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(iii)Following receipt of the Rolling Forecast or Revised Rolling Forecast, Manufacturer’s Project Manager may request Service Provider’s Project Manager to provide additional detail or respond to questions on the Rolling Forecast or Revised Rolling Forecast. To the extent the Manufacturer and Service Provider disagree over any part of the Rolling Forecast or Revised Rolling Forecast, the Project Managers, Operational Committee, any relevant Operational Subcommittees or Executives, shall discuss such disagreement in good faith pursuant to Section 5. To the extent that the Parties cannot reach an agreement with respect to any estimated Services Costs and Expenses relating to any Service or Additional Service on a go-forward basis, Manufacturer may terminate any such Service or Additional Service and the Parties shall execute a Change Order, in accordance with Section 2.4.

 

2.4Change Orders. From time to time during the Term, a Party may request to make a change to the Services Schedule, including, for the avoidance of doubt, a request by Manufacturer to terminate a Service or Additional Service as a result of discussions in connection with a Rolling Forecast or Revised Rolling Forecast (a “Change”). In the event the Parties agree on a Change, Service Provider will prepare a mutually agreeable change order (a “Change Order”) that amends the applicable Service Schedule(s) and the Parties will execute and deliver such Change Order, provided that where Manufacturer has requested to terminate a Service or Additional Service as a result of discussions in connection with a Rolling Forecast or Revised Rolling Forecast, the Parties shall be deemed to agree to such termination and promptly execute the Change Order.

 

2.5Conflict Among Services Schedules and this Agreement. No Service Schedule or other communications from either Party shall vary the terms and conditions of this Agreement unless both Parties expressly agree in writing to modify a term of this Agreement as determined in Section 17.7 and identify the specific term to be modified. In the event of any conflict between the terms and conditions of this Agreement and those of any Services Schedules or Additional Services Schedule, other ordering documents or other communications from either Party, the terms and conditions of this Agreement shall prevail unless the Parties have agreed otherwise pursuant to the preceding sentence.

 

2.6Subcontracting of Services. Manufacturer acknowledges and agrees that Service Provider may provide any or all of the Services, in whole or in part, to Manufacturer directly or through one or more of its Affiliates or Third-Party Service Providers, provided that (i) such Affiliates or Third-Party Service Providers are bound by obligations of confidentiality that are consistent with Section 10 of this Agreement and (ii) Service Provider shall in all cases retain full responsibility for the provision of the Services to be performed by any such Affiliates or Third-Party Service Provider. Service Provider shall not deduct or withhold from any payment to a Third-Party Service Provider pursuant to this Agreement any Taxes unless required to do so by Law. Any Taxes deducted or withheld pursuant to this Section 2.6 and timely remitted to the appropriate Governmental Authority will be treated as if paid under this Agreement to the Third-Party Service Provider with respect to which the deduction or withholding was made.

 

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2.7Performance Standards. Service Provider agrees that the Services will be provided (i) at the same quality level as such Services would have been provided by a professional provider of such Services; (ii) at least consistent with the practices used and adopted from time to time, by Service Provider or its Affiliates at similar manufacturing facilities where solar modules are manufactured, owned or operated by Service Provider or its Affiliates; (iii) using Service Provider Personnel (as defined herein) who are qualified, experienced, knowledgeable with and trained for the tasks assigned to such individuals; and (iv) in accordance with the terms and conditions of this Agreement. To the extent any Services Schedule sets forth timelines for performance of tasks or delivery of deliverables or the Project Managers (as defined herein) agree to any such timelines or deliverables in writing, Service Provider will use commercially reasonable efforts to meet such timelines and will ensure that such deliverables conform in all material respects to the specifications and instructions set forth in the Services Schedule or otherwise agreed upon by the Project Managers in writing. In the event of any breach of the foregoing, Service Provider shall use commercially reasonable efforts to correct the non-conforming Services with reasonable promptness after Manufacturer notified the Service Provider of such non-conforming Services, and in no event later than fifteen (15) Business Days after such notice or within the period otherwise established in the applicable Service Schedule.

 

2.8Services to Manufacturer Affiliates. Manufacturer may instruct Service Provider to provide any Services or Additional Services hereunder to any of Manufacturer’s Affiliates (each such Affiliate, a “Service Recipient”) and such Service Recipient shall be entitled to enforce this Agreement with respect to such Services in accordance with Section 17.2. For the avoidance of any doubt, TUM 1 is a Service Recipient for the purposes of this Agreement.

 

3Service Provider Personnel

 

3.1Employment of Service Provider Personnel. Immediately after the Closing Date, Service Provider, directly or through its Affiliates and Third Party employment agencies, shall employ and make available to Manufacturer certain of the personnel employed by or contracted by TUM 1 immediately prior to the Closing Date to assist with the operation of the Solar Module Manufacturing Facility and, thereafter during the Term (as defined herein), will continue to employ or engage such personnel or their replacements to perform the Services under an employee leasing arrangement (such employees and contractors, the “Service Provider Personnel”). Schedule A sets forth the material terms upon which Service Provider agrees to lease the Service Provider Personnel to Manufacturer. From time to time, when requested by Manufacturer, Service Provider will deliver complete lists of all then-current Service Provider Personnel. Service Provider Personnel shall exclude any personnel who are the direct employees of Manufacturer.

 

3.2Additional or Less Personnel. If Manufacturer reasonably determines that additional personnel are reasonably necessary (or would be beneficial) for Manufacturer to operate the Solar Module Manufacturing Facility, or less personnel is required, Manufacturer shall inform and consult with Service Provider to determine the necessary staffing levels. If the Parties cannot agree on the appropriate staffing levels, the Parties shall refer the matter to the Operational Committee for consideration.

 

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4Obligations of the Manufacturer

 

4.1Operation of the Business. Manufacturer shall be responsible for all aspects of the management and operation of the Solar Module Manufacturing Facility (“Manufacturer Responsibilities”), other than the Services and the Additional Services as set forth herein. Manufacturer Responsibilities include but are not limited to:

 

(i)strategic planning, including the determination of strategy and objectives for Manufacturer and its Affiliates;

 

(ii)financial management, including tracking and reporting the financial performance of Manufacturer and its Affiliates and tax credit management);

 

(iii)establishing and monitoring controls, as applicable to an operating subsidiary of a US public company;

 

(iv)manufacturing of Solar Modules;

 

(v)quality controls;

 

(vi)equipment and building maintenance, as it relates to keeping the Solar Module Manufacturing Facility in good repair;

 

(vii)human resources, including payroll and benefits for Manufacturer’s employees and contractors only (and not in relation to Service Provider Personnel); and

 

(viii)contract and vendor management, as it relates to contracts with Third Parties, except for Third-Party Service Providers.

 

4.2Access to Solar Module Manufacturing Facility; Materials and Resources. During the Term, Manufacturer agrees to provide access to the Solar Module Manufacturing Facility to Service Provider, Service Provider Personnel and Third-Party Service Providers as reasonably necessary or advisable to permit Service Provider to provide the Services. Manufacturer shall procure, purchase, supply and or provide the following: (i) all office supplies, telephone systems and general office equipment and associated support services, office furnishings, workspace and utilities (but only with respect to Service Provider Personnel who are located in the Solar Module Manufacturing Facility) and (ii) all data, documents, materials and other information, in each case as reasonably necessary for Service Provider Personnel to perform the Services. To the extent Manufacturer makes accommodations as are reasonably necessary to its employees and personnel who are located at the Solar Module Manufacturing Facility, Manufacturer agrees to make the same accommodations for Service Provider Personnel who are performing similar duties or functions at the Solar Module Manufacturing Facility.

 

4.3Access to Manufacturer Systems. Manufacturer shall obtain and maintain its technology, platforms, networks, applications, software databases, computer hardware and other technology (“Manufacturer Systems”) as reasonably necessary or advisable to operate the Solar Module Manufacturing Facility or as reasonably requested by Service Provider to provide the Services. During the Term, Manufacturer agrees to provide Service Provider Personnel and Third-Party Service Providers access to Manufacturer Systems as reasonably necessary or advisable to enable Service Provider to provide the Services.

 

4.4Consents and Permits. Manufacturer shall obtain and maintain all necessary licenses, permits, waivers, registrations, grants, authorizations, approvals, certifications and consents required for the operation of the Solar Module Manufacturing Facility.

 

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5Operational Management

 

5.1Cooperation; Delays. Each Party shall (i) cooperate with the other Party in the performance of the obligations under this Agreement; (ii) consider in good faith the recommendations made by the other Party with respect to this Agreement; and (iii) require that its Project Manager (as defined below) respond promptly to any reasonable requests from the other Party for instructions, information, or approvals required by such Party in connection with the obligations under this Agreement. If a Party’s performance of its obligations under this Agreement is prevented or delayed by any action or omission of the other Party, such first Party shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the other Party, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

5.2Project Managers. Service Provider and Manufacturer shall each appoint a “Project Manager” to act as the primary point of contact for such Party regarding day-to-day matters relating to each Party’s obligations under this Agreement as soon as practical after the Effective Date. Each Party may replace its Project Manager by written notice (email sufficient) to the other Party’s Project Manager (provided that notice of any replacement of a Project Manager shall be effective only upon receipt of such written notice).

 

5.3Operational Committee.

 

(i)Formation. As soon as reasonably practical following the Effective Date, Service Provider and Manufacturer shall establish a joint operational committee (the “Operational Committee”), comprised of three (3) representatives of Service Provider and three (3) representatives of Manufacturer (each a “Representative”). All such Representatives must have appropriate experience and authority to make decisions on behalf of the appointing Party. The Parties shall appoint initial members of the Operational Committee as soon as practical after the Effective Date. Service Provider and Manufacturer may replace any of its Representatives on the Operational Committee at any time upon written notice (email is sufficient) to the other Party, provided that notice of any Representative replacement shall be effective only upon receipt of such written notice.

 

(ii)Operational Committee Scope of Authority. The Operational Committee shall be responsible for facilitating communications between the Parties and for oversight of the Parties’ efforts to relating to the manufacture, distribution and sale of solar products as contemplated under the Commercial Agreements. The Operational Committee shall discuss in good faith with the aim to resolve disagreements or issues under the Commercial Agreements, provided the Operational Committee shall have no responsibilities or authority with respect to any Manufacturer Responsibilities and will not have the power to contract for or bind either Party.

 

(iii)Subcommittees. The Operational Committee may, from time to time, establish subcommittees to address matters that may arise under any of the Commercial Agreements, including, for the avoidance of doubt, a sales subcommittee to discuss disputes or issues under the Sales Agency Agreement (each, an “Operational Subcommittee”). In establishing Operational Subcommittees, the Operational Committee shall define in writing the scope of authority for the Operational Subcommittee, its members (and the process for replacing members), and other matters the Operational Committee determines are relevant to the management of the Operational Subcommittee. The Operational Committee may at any time disband any Operational Subcommittee or modify its scope of authority.

 

(iv)Operational Subcommittee Scope of Authority. Each Operational Subcommittee shall have the responsibilities delegated to such Operational Subcommittee by the Operational Committee. The duration of each Operational Subcommittee may be limited in time, in which case the authority of such Operational Subcommittee will end as prescribed by the Operational Committee, unless extended by the Operational Committee. Each Operational Subcommittee shall discuss in good faith with the aim to resolve disagreements or the issues under the Commercial Agreements, as delegated by the Operational Committee, provided the Operational Subcommittees shall have no responsibilities or authority with respect to any Manufacturer Responsibilities and will not have the power to contract for or bind either Party.

 

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(v)Meetings. The Operational Committee and any Operational Subcommittees may establish guidelines for meetings and may revise such rules from time to time, provided that no such rules may authorize or permit any action outside of the scope of authority granted to the Operational Committee under this Agreement or to the scope of authority granted by the Operational Committee to any Operational Subcommittee. For the avoidance of doubt, the Operational Committee and Operational Subcommittees shall not make decisions binding on either Party.

 

(vi)Disputes. At a duly called meeting, the Operational Committee shall seek to resolve disputes informally between the Parties as promptly as possible. If the Operational Committee cannot resolve any dispute as to any matter within the Operational Committee’s authority, then the status quo of such matter shall continue until the Parties reach agreement. If, after thirty (30) days the Operational Committee is unable to resolve any dispute, then the dispute, upon the request of either Party, will be referred for resolution to the President for Service Provider and the Chief Executive Officer of Manufacturer (together, the “Executives”). Within thirty (30) days of such referral, such Executives of each Party will confer (via video conference unless otherwise agreed) to resolve such dispute. If, after an additional thirty (30) days from the meeting of such Executives, the Parties are still unable to resolve a deadlock, either Party may seek resolution in accordance with Section 16. The Party seeking resolution of a dispute brought to the Operational Committee must provide written notice to the other Party prior to initiating any proceeding.

 

6Financial Terms

 

6.1Service Fees. In consideration for the Services rendered for each calendar year during the Term, Manufacturer shall pay to Service Provider an annual fee equal to five percent (5%) of the Adjusted EBITDA for the relevant calendar year in which the Services are performed (the “Service Fee”). The Parties agree the Service Fee provides partial consideration for the performance of Service Provider’s obligations under this Agreement and, in addition, provides partial consideration for the rights and licenses granted under the IP License Agreement, the Trademark License Agreement and other Commercial Agreements. For the avoidance of doubt, Service Provider may allocate the Service Fees to the IP License Agreement, the Trademark License Agreement and other Commercial Agreements in its sole discretion. Notwithstanding the foregoing, as Service Provider will have substantial advance cost and expenses to prepare for providing the Services, Services Fee shall be paid to the Service Provider regardless of whether Services are rendered by Service Provider to Manufacturer hereunder.

 

6.2Payment of Service Fees.

 

(i)Promptly after Manufacturer files its annual report (“Manufacturer Annual Report”) with the Securities Exchange Commission (“SEC”), Manufacturer shall deliver to Service Provider the calculation of the Services Fee (together with reasonable supporting detail). Upon receipt of the calculation of Service Fees from Manufacturer, Service Provider shall invoice Manufacturer for the Services Fee and Manufacturer shall pay the amount of such invoice in U.S. dollars within thirty (30) days after the date of receipt of the invoice.

 

(ii)If Manufacturer fails to timely file its Manufacturer Annual Report in accordance with the rules promulgated under the Securities Exchange Act of 1934 or any other applicable rules of the SEC for more than thirty (30) days, then the Parties shall meet and confer to discuss the calculation of the Services Fees and Manufacturer shall provide its estimate of Adjusted EBITDA to Service Provider promptly thereafter (the “Services Fee Estimate”). Upon receipt of the calculation of the Services Fee Estimate, Service Provider shall invoice Manufacturer for the Services Fee Estimate and Manufacturer shall pay the amount of such invoice in U.S. dollars within thirty (30) days after the date of receipt of the invoice. Within fifteen (15) days of Manufacturer filing the late Manufacturer Annual Report with the SEC, Manufacturer shall deliver to Service Provider an updated calculation of the Services Fees (together with reasonable supporting detail), if applicable (the “Updated Services Fee”). If the Updated Services Fee is greater than the Services Fee Estimate, then Service Provider shall invoice Manufacturer for the difference between the Updated Services Fee and Services Fee Estimate and Manufacturer shall pay the amount of such invoice in U.S. dollars within thirty (30) days after the date of receipt of the invoice. If the Updated Services Fee is less than the Services Fee Estimate, then Manufacturer shall set off the difference between the Updated Services Fee and the Services Fee Estimate against amounts owed to Service Provider for Service Costs and Expenses (as defined below) in the following billing cycle; provided, however, that if the Updated Services Fee is less than the Services Fee Estimate for the last year of the Term, Manufacturer shall notify Service Provider of the amount of the excess of the Services Fee Estimate over the Updated Services Fee when it delivers the Updated Services Fee to the Service Provider, and Service Provider shall refund such excess within thirty (30) days thereafter.

 

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(iii)If Manufacturer ceases to be a public company required to file an annual report with the SEC, Manufacturer shall deliver an audited financial statement and calculation of the Services Fee (together with reasonable supporting detail) to Service Provider on or before April 30th of each calendar year following the calendar year during which the Services are provided for the calculation of Service Fees, and Service Provider shall invoice Manufacturer for such Service Fees and Manufacturer shall pay the amount of such invoice in U.S. dollars within thirty (30) days after the date of receipt of the invoice.

 

6.3Services Costs and Expenses. Manufacturer shall be responsible for all fully burdened costs and expenses reasonably incurred by Service Provider in performance of its obligations under this Agreement, including substantiated costs of management and administrative overhead, which are reasonably attributed to the Service Provider’s provision of Services hereunder, costs incurred in establishing and maintaining the Procurement Platform commensurate with the Services, benefits for all Service Provider Personnel and, with regard to non-U.S. Service Provider Personnel, all amounts due to Third Party agencies, costs of applications, transportation, costs of housing and other reasonable costs and expenses incurred in order to employ all such Service Provider Personnel and deploy them to Manufacturer, and in each case provided they are direct costs of Service Provider (“Services Costs and Expenses”). The Services Costs and Expenses shall be invoiced monthly (together with reasonable supporting detail) by Service Provider in the calendar month following the calendar month in which such Services Costs and Expenses are incurred, and Manufacturer shall pay the amount of such invoice in U.S. dollars within thirty (30) days of the date of receipt of the invoice.

 

6.4Disputed Payments. If Service Provider disputes in good faith Manufacturer’s calculation of Service Fees or if Manufacturer disputes in good faith of an invoice for Service Costs and Expenses provided by Service Provider (in each case, a “Payment Dispute”), the disputing Party shall provide to the other Party an explanation of the basis for the dispute and Manufacturer shall pay to the Service Provider the portion of the invoice that is not in dispute by the due date. Thereafter, the Parties shall discuss and try to resolve the disputed amount within one (1) week of receipt of such notice of dispute (the “Dispute Period”). If the Parties resolve the Payment Dispute within the Dispute Period and the disputed amount is determined to be properly due and payable, then the relevant Party shall pay to the other Party such disputed amount on or before ten (10) days after such determination. If the Payment Dispute has not been resolved by the end of the Dispute Period, then the Payment Dispute shall be referred to the Operational Committee and shall be resolved in accordance with the terms set forth in Section 5.3.

 

6.5Remedies for Failure to Pay Services Fees. Subject to Section 6.4, if Manufacturer fails to pay any Service Fees in accordance with the payment terms, then, without limiting Service Provider’s other rights and remedies, Service Provider shall have the right, in its sole discretion, to assess late charges in an amount equal to the lesser of 1.5% per month or, if lower, the maximum allowable under applicable Law. Manufacturer shall not have the right to withhold payments to Service Provider or reduce the amount of payments owed to Service Provider under this Agreement for fees, claims, damages, expenses or other amounts owed, or alleged to be owed, to Manufacturer from Service Provider under this Agreement or any other agreement. Manufacturer shall reimburse Service Provider for all costs of collection, including reasonable attorneys’ fees, incurred by Service Provider as a result of its failure to make such payments in accordance with this Agreement.

 

6.6Taxes. TUS acknowledges that the payment of the Services Fee by Manufacturer under this Agreement may be subject to withholding obligations and other deductions under applicable Law. Manufacturer shall withhold or deduct all such amounts that TUM 1 determines is required under applicable Law and shall remit such amounts to the proper taxing authorities without any obligation to make any additional payments.

 

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7Regulatory Matters

 

7.1Compliance with Laws. Each of Manufacturer and Service Provider shall comply with all Laws applicable to such Party and all Laws of the United States related to the performance of its obligations under this Agreement.

 

7.245X Tax Credit. For each year during the Term, upon Manufacturer’s request, Service Provider and Service Provider’s Affiliates (the “45X Parties”) agree to provide Manufacturer with a protective certification statement (in the manner as described in Treasury Regulation section 1.45X-1(c)(3)(iv) stating that, in the event the Internal Revenue Service characterizes agreement or arrangement between or among the 45X Parties or any of their respective Affiliates as a “contract manufacturing arrangement” under Treasury Regulation section 1.45X-1(c)(3)(ii), Manufacturer, or, if Manufacturer is disregarded as an entity separate from its owner for United States federal income tax purposes, the regarded owner of Manufacturer’s assets for such purposes, is the sole taxpayer who can claim the advanced manufacturing production credit under section 45X of the Internal Revenue Code, as amended (the “Code”) with respect to the Solar Modules, and that none of Service Provider or Service Provider’s Affiliates shall claim such credit under section 45X of the Code. If any Third-Party Service Provider provides any Services to Manufacturer, Service Provider agrees to use commercially reasonable efforts to cause such Third-Party Service Provider to provide Manufacturer with a certification statement in the manner described in this Section 7.2. Service Provider shall use commercially reasonable efforts to cause any such Third-Party Service Provider to be bound by obligations described in this Section 7.2.

 

8Term; Termination

 

8.1Term. This Agreement is effective as the Effective Date and shall continue until the later of (1) the fifth (5th) anniversary of the date hereof and (2) the date the Obligations (as defined in the Credit Agreement) have been repaid in full in cash or otherwise discharged in accordance with the Credit Agreement (the “Term”), unless terminated earlier as provided herein; the Parties may mutually agree in writing to extend the term of this Agreement, if so agreed, the Term will include any such extension period.

 

8.2Early Termination. In addition to any other rights of termination provided under this Agreement, this Agreement may be terminated as follows:

 

(i)by either Party if the other Party is in material breach of this Agreement and fails to cure such breach within forty-five (45) days after written notice thereof by the non-breaching Party;

 

(ii)by either Party if the other Party is in material breach of another Commercial Agreement and fails to cure such breach within the cure period set forth therein unless the Obligations (as defined in the Credit Agreement) have been repaid in full in cash or otherwise discharged in accordance with the Credit Agreement (in which case this Section 8.2(ii) does not apply);

 

(iii)by either Party upon written notice to the other Party upon (a) the discontinuance, dissolution, liquidation and/or winding up of the other Party’s business or (b) the making, by the other Party, of any general assignment or arrangement for the benefit of creditors; the filing by or against the other Party of a petition to have it adjudged bankrupt under bankruptcy or insolvency Laws, unless such petition shall be dismissed or discharged within sixty (60) days; (c) the appointment of a trustee or receiver to take possession of all or substantially all of such Party’s assets, where possession is not restored to the appropriate Party within thirty (30) days; or (d) the attachment, execution or judicial seizure of all or substantially all of the other Party’s assets where attachment, execution or judicial seizure is not discharged within thirty (30) days; and

 

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(iv)at any time upon the mutual written agreement of the Parties;

 

provided further, the Parties may mutually agree in writing to terminate any Services Schedule and the Services related thereto, in which case the Agreement and all other Services Schedules not expressly terminated shall remain in full force and effect.

 

8.3Effect of Termination. Upon termination of this Agreement for any reason, (i) Service Provider shall have no further obligation to provide Services, (ii) Manufacturer (1) shall have no obligation to pay any Service Cost and Expenses incurred after the date of termination (unless the Parties agree otherwise in writing) and (2) the Service Fee shall be prorated and shall only be payable for the portion of the year for which the Services are provided, and (iii) each Party shall return or destroy all Confidential Information of the receiving Party in accordance with Section 10.3. Termination of this Agreement shall not release any Party from the obligation to make payment of all amounts then or thereafter due and payable hereunder.

 

8.4Suspension of Obligations. In addition to the right to terminate pursuant to Section 8.2, if either Party does not cure a material breach as set forth in Section 8.2(i), then the non-breaching Party may, without prejudice to any other right or remedy available to such Party, suspend performance of its obligations hereunder until such material breach has been cured.

 

8.5Survival. The following sections of this Agreement shall survive the termination or expiration of this Agreement: Sections 1, 8.5, 9, 10, 11, 12, 13, 14, 16, and 17.

 

9Representations and Warranties; Covenants

 

9.1Mutual Representations and Warranties; Covenants. Each Party hereby represents and warrants as of the date hereof, and with respect to (iii) covenants, that (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization; and (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement.

 

9.2Service Provider Representations. Service Provider represents and warrants as of the date hereof of and covenants that to its Knowledge:

 

(i)the Services provided to Manufacturer under this Agreement do not and will not contain or use any computer programs, data, work, designs, materials, technology or other information that infringe, misappropriate or otherwise violate the rights of any Third Party; and

 

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(ii)there is no claim pending or threatened in writing against the Service Provider which may adversely affect the Service Provider’s ability to provide the Services under this Agreement.

 

9.3DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

 

10Confidentiality

 

10.1Definition; Exclusions. Each Party acknowledges that, in connection with this Agreement, it will gain access to certain non-public, confidential, or proprietary information of the other Parties (“Confidential Information”). Confidential Information does not include information that at the time of disclosure is: (i) in the public domain; (ii) known to the Party receiving it; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a Third Party; or (iv) independently developed by the receiving Party without access to the other Party’s Confidential Information.

 

10.2Obligations. Each Party shall maintain each other Party’s Confidential Information in strict confidence, use it only in furtherance of this Agreement, and not disclose it to any other Person, except to its employees, directors, officers, contractors, advisors, equity investors, lenders, and, with respect to TUM 1, Customer, in each case who (i) have a need to know such Confidential Information for such Party to exercise its rights or perform its obligations hereunder and (ii) are bound by written nondisclosure agreements with such Person or entity. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to comply with an order of a court or other Governmental Authority, or as otherwise necessary to comply with applicable Law, provided that the Party making the disclosure pursuant to the order or in compliance with Law shall first have given written notice to the other Party, as soon as reasonably practicable, to the extent legally permissible, to permit the other Party to object to the disclosure, and also shall first have made a reasonable effort to obtain a protective order to protect such disclosure.

 

10.3Return of Confidential Information. Upon expiration or termination for any reason of this Agreement, the receiving Party shall immediately (i) return all Confidential Information of the disclosing Party to the disclosing Party, or (ii) destroy it. At the same time, the receiving Party shall provide the disclosing Party with a written certificate signed by an authorized representative of the receiving Party on the return or destruction of all such Confidential Information.

 

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11Privacy and Data Security

 

11.1Employee Data. Each Party and their respective Affiliates may, from time to time, disclose personal information relating to their respective employees and contractors, as applicable, by such Party (as applicable, “Employee Data”) in order to manage the Services. Each Party shall separately determine the means and purposes of its own processing Employee Data, acting as separate and independent controllers in relation to such processing. The Parties agree that, as between one another, neither shall be considered to be processing Employee Data on behalf of the other. Each Party shall ensure that Employee Data is protected by commercially reasonable administrative, technological, and physical safeguards consistent with (i) the value of the Employee Data; (ii) the risks to the Parties and to the persons to whom the Employee Data relates; and (iii) the requirements of applicable Laws. Each Party shall, without undue delay, and, in any event, within five (5) days, notify the other Party if such Party becomes aware of any compromise to the confidentiality of the other Party’s Employee Data. The notification shall include all information available to such Party regarding the cause of the compromise as well as any information available regarding the Employee Data affected and remedial measures that such Party has taken or plans to take. Such Party shall update its notification without undue delay as new information becomes available. Such Party shall also reasonably cooperate with the other Party and its Affiliates to investigate any such compromise and, if the compromise arose out of the actions or inactions of such Party’s information systems or personnel, shall remedy the causes of the compromise and take commercially reasonably steps to prevent reoccurrence.

 

11.2Ownership of Manufacturer Data. Manufacturer Data” means all data that is submitted or provided to Service Provider or its Affiliates by or on behalf of the Manufacturer in connection with the Services or any Additional Services and all data that is processed, derived or produced in connection with the Services or any Additional Services (excluding Service Provider’s Employee Data). As between Service Provider and Manufacturer, Manufacturer retains all right, title and interest in and to Manufacturer Data. Manufacturer hereby grants to Service Provider a non-exclusive, non-transferable, non-sublicensable (except to its Affiliates and Third-Party Service Providers as necessary in order to provide the Services), worldwide right and license to use, copy, modify, access, and create derivative works of Manufacturer Data as necessary, and solely in order, to provide the Services and any Additional Services under this Agreement.

 

11.3Security. If the Services require Service Provider to access or use the Manufacturer Systems in performing the Services, Service Provider agrees to comply with all security controls, policies, standards and guidelines applicable to the Manufacturer’s systems. Service Provider shall not, and shall not permit any Third Party to: (i) introduce any virus or disabling code into the Manufacturer’s systems; (ii) enable Third Parties to have unauthorized access to the Manufacturer’s systems; (iii) attempt to access any portions of the Manufacturer’s systems other than as permitted or required under this Agreement; (iv) use the Manufacturer’s systems in any manner that would be reasonably likely to damage or impair or the Manufacturer’s systems; (v) circumvent or attempt to circumvent or bypass the Manufacturer’s security procedures for the Manufacturer’s systems; or (vi) otherwise adversely affect or alter the operation, functionality and technical environment of the Manufacturer’s systems. Each Party shall ensure that its information technology systems and processes comply with applicable Center for Internet Security (CIS) Controls or equivalent security protections that provide reasonable security to protect the Confidential Information provided by the other Party, Employee Data, Manufacturer Data and Services Personal Data as defined in Section 11.

 

11.4Services Personal Data. Each Party acknowledges that a Party may require the other Party, as part of its performance of obligations under this Agreement, to process, on the other Party’s behalf, information that identifies or can be used to identify, contact, or locate the person to whom that information pertains (“Services Personal Data”). To the extent either Party is required to process Personal Data, the Parties agree to comply with the Data Processing Agreement attached hereto as Schedule B (the “DPA”). Each Party shall also require that its Affiliates and, in the case of Service Provider, Third-Party Service Providers, that have access to Personal Data agree to comply with and are bound by written agreements that include all of the terms or substantially similar terms to those set forth in the DPA.

 

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12Indemnification

 

12.1Indemnification by Service Provider. Service Provider shall indemnify, defend, and hold harmless Manufacturer, its Affiliates, and their respective officers, directors, members, managers, employees, and contractors (“Manufacturer Indemnified Party”) from and against any loss, liability, or expense (including attorneys’ fees and costs) incurred by a Manufacturer Indemnified Party as a result of a claim or demand by an unaffiliated Third Party alleging or arising from (i) any breach of this Agreement by Service Provider; (ii) the negligence, gross negligence, willful misconduct or fraud by Service Provider, its Affiliates, or its or its Affiliates’ officers, directors, members, managers or employees (including indirect employees provided through staffing agencies, contract employees and the Service Provider Personnel); and (iii) Service Provider’s failure to comply with applicable Laws in the performance of the Services hereunder.

 

12.2Indemnification by Manufacturer. Manufacturer shall indemnify, defend, and hold harmless Service Provider, its Affiliates, and their respective officers, directors, members, managers, employees, and contractors (“Service Provider Indemnified Party”) from and against any loss, liability, or expense (including attorneys’ fees and costs) incurred by a Service Provider Indemnified Party as a result of a claim or demand by an unaffiliated Third Party alleging or arising from (i) any breach of this Agreement by Manufacturer; (ii) the negligence, gross negligence, willful misconduct or fraud by Manufacturer, its Affiliates or its or its Affiliates’ officers, directors, members, managers or employees (including indirect employees provided through staffing agencies and contract employees); and (iii) Manufacturer’s failure to comply with applicable Laws in the performance of this Agreement.

 

12.3Procedures. The Party seeking to be indemnified pursuant to this Section 12 (as applicable, the “Indemnified Party”) shall be entitled to indemnification hereunder only: (i) if it gives written notice to the Party obligated to provide such indemnification hereunder (the “Indemnifying Party”) of any losses or claims, suits, or proceedings by Third Parties which may give rise to a claim for indemnification with reasonable promptness after receiving written notice of such claim (or, in the case of a proceeding, is served in such proceeding) or becoming aware of any such loss; provided, however, that failure to give such notice shall not relieve the Indemnifying Party of its obligation to provide indemnification, except if and to the extent that the Indemnifying Party is actually and materially prejudiced thereby, and (ii) once the Indemnifying Party confirms in writing to the Indemnified Party that it is prepared to assume its indemnification obligations hereunder, the Indemnifying Party has sole control over the defense of the claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to be represented by its own counsel at its own cost in such matters. Notwithstanding the foregoing, (x) no Indemnifying Party shall have the right to assume control over the assertion of any claim, or the commencement of any action, in either case with respect to Taxes of the Indemnified Party, provided that the Indemnified Party shall not settle or resolve any such claim or action if doing so would reasonably be expected to adversely impact the Indemnifying Party, including increasing the Indemnifying Party’s obligations pursuant to this Agreement, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed; and (y) the Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party to make any admission, or to take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. Each Party shall reasonably cooperate with the other Party and its counsel in the course of the defense of any such suit, claim, or demand, such cooperation to include using reasonable efforts to provide or make available documents, information, and witnesses and to mitigate damages.

 

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12.4Employment Indemnities. Each Party agrees to cooperate in the defense of an Employment Claim, including coordinating with each Party’s insurance carriers with respect to any Employment Claim. To the extent there is any payment due and payable in connection with a Personal Injury Claim, the Parties shall allocate the costs in proportion to each Party’s relative negligence. In the event of a Benefits Claim, the employer Party shall defend and settle such Benefits Claim at its own expense.

 

12.5Indemnification Period. Neither Party will have liability to the other Party for indemnification under Sections 12.1(i) and 12.2(i), respectively, unless notice of the claim is given by the Indemnified Party within two (2) years of the date that the cause of action arose.

 

13Insurance. During the Term, each Party will obtain and maintain the insurance policies appropriate to such Party’s risks under this Agreement (as determined by each Party in its sole discretion). The obligations of each of the Parties under this Agreement shall not be limited by availability or collectability of the insurance policies carried by such Party.

 

14Limitations on Liability

 

14.1EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12 AND EXCEPT FOR A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, TRANSACTION LOSSES, OR OPPORTUNITY COSTS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.

 

14.2EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12 AND EXCEPT FOR MANUFACTURER’S OBLIGATION TO PAY SERVICE FEES AND SERVICES COSTS AND EXPENSES IN FULL WHEN DUE, IN NO EVENT SHALL EITHER PARTY’S TOTAL, AGGREGATE LIABILITY TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE HIGHER OF (I) $25,000,000 AND (II) THE AMOUNTS PAID OR PAYABLE BY MANUFACTURER TO SERVICE PROVIDER UNDER THIS AGREEMENT FOR SERVICES IN THE EIGHTEEN (18) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIMS (THE “BASE CAP”).

 

14.3NOTWITHSTANDING ANY CONTRARY TERM IN THIS AGREEMENT, TO THE EXTENT PERMISSABLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING EACH PARTY’S OBLIGATIONS IN SECTION 12, EXCEED THE HIGHER OF (I) $50,000,000 AND (II) THE AMOUNTS PAID OR PAYABLE BY MANUFACTURER TO SERVICE PROVIDER THIS AGREEMENT FOR SERVICES IN THE THIRTY SIX (36) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIMS (THE “INDEMNITY CAP”).

 

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14.4FOR AVOIDANCE OF DOUBT, MANUFACTURER’S OBLIGATION TO PAY SERVICE FEES AND SERVICES COSTS AND EXPENSES IN FULL WHEN DUE IS NOT SUBJECT TO THE BASE CAP OR TO THE INDEMNITY CAP.

 

15Force Majeure. No Party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond such Party’s reasonable control (a “Force Majeure Event”). A Force Majeure Event includes, but is not limited to, any act, event or occurrence, whether it is foreseeable or unforeseeable, that materially affects the ability of either Party to perform any or all of its obligations under the Agreement and which is beyond the reasonable control of either Party and is not caused by each Party’s negligence or willful misconduct. Depending upon the facts and circumstances, a Force Majeure Event may include, but is not limited to: acts of God; tornados, hurricanes, typhoons, excessive rainfall, earthquakes, or other severe weather conditions; blight; famine; quarantines, epidemics, or pandemics (except for known and continuing effects of COVID-19 and its known variants prior to the Effective Date, including shelter-in-place orders, factory closures, employee repatriation and other restrictions, guidelines, closings, cancellations and/or precautionary measures undertaken by governmental action); any act of terrorism; war; sabotage; insurrection or civil strife; blockades or embargoes; explosions; regional or national labor disputes, including strikes; customs delays; failure of any Third Party shipping or delivery provider; closure or accidents involving harbors, docks, canals, or other infrastructure used by the shipping or transportation industries; shipping delays that could not be avoided through the exercise of reasonable diligence; and other unavoidable events. The affected Party will notify the other Party as soon as practicable after the occurrence of a Force Majeure Event, and shall use commercially reasonable efforts to mitigate or cure the effect of the Force Majeure Event. In the event that the Force Majeure Event continues for a period exceeding six (6) months, then either Party may suspend performance of this Agreement or terminate this Agreement upon written notice to the other Party. Neither Party shall pay damages to the other Party for termination of this Agreement due to a Force Majeure Event.

 

16Governing Law and Jurisdiction; Waiver of Jury Trial; Equitable Remedies

 

16.1Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction). The application of the United Nations Conventions on the International Sale of Goods is explicitly excluded. Any legal suit, action or proceeding arising out of or based upon this Agreement shall properly and exclusively lie in the state and federal courts located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

16.2Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (II) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

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16.3Equitable Relief. Each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation, and in the event of such a breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including, without limitation, specific performance. The Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

 

17Miscellaneous.

 

17.1Assignment.

 

(i)Neither Party may assign this Agreement to any Third Party, in whole or in part, including by operation of Law or otherwise, without the prior written consent of the other Party except that Service Provider shall be permitted to assign this Agreement, in whole or in part, to an Affiliate upon thirty (30) days prior notice to Manufacturer (an “Affiliate Assignee”), provided however, that (a) the Affiliate Assignee agrees to be responsible for the obligations of Service Provider hereunder, including all rights and obligations arising prior to the date on which the assignment is effective, and (b) Service Provider remains liable for the performance of each and all of the obligations by such Affiliate Assignee under the Agreement unless the Parties agree to otherwise in writing. For purposes of this Agreement, any Change of Control of a Party shall be deemed an assignment. “Change of Control” means (a) an acquisition of the Party by another Person by means of any transaction or series of related transactions pursuant to which such other Person becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the voting stock of the relevant Party (including any reorganization, amalgamation, exchange offer, business combination, merger, consolidation or similar transaction), or (b) a sale, transfer, assignment, conveyance, or other disposition, directly or indirectly, in one or a series of related transactions, of all or substantially all of the assets of the Party. “Beneficial owner” means a beneficial owner as defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934. Prohibited assignments are null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ permitted successors and assigns.

 

(ii)Notwithstanding anything in this Section 17.1, Manufacturer, on behalf of TUM 1 may (a)  directly or indirectly, pledge, encumber, collaterally assign, transfer or otherwise grant a lien or other security interest on its rights hereunder (such pledge, encumbrance, assignment, transfer or grant, a “Pledge”) as collateral in connection with the Credit Agreement and (b) assign this Agreement in connection with a foreclosure (or a sale, assignment or other transfer in lieu of foreclosure) or other exercise of remedies of the Secured Parties (as defined in the Credit Agreement) (or any of their applicable representatives) with respect to the Pledge.

 

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17.2Third-Party Beneficiaries. Except (1) as provided in Section 12.1 (Indemnification by Service Provider) and Section 12.2 (Indemnification by Manufacturer) and (2) for any Service Recipient, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

 

17.3Independent Contractors. The relationship between Service Provider and Manufacturer is that of independent contractors. Nothing contained in this Agreement or any of the other Commercial Agreements creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between or among the Parties or any of their respective Affiliates for any purposes whatsoever (including for U.S. federal income tax purposes), neither Party shall, or shall permit its Affiliates to, hold itself out as an agent, partner, joint venturer, employer, employee or fiduciary of the other Party (or any of its Affiliates) in connection with this Agreement (including for U.S. federal income tax purposes), and neither Party has authority to contract or bind the other Party in any manner whatsoever.

 

17.4Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (other than routine communications having no legal effect) must be in writing and sent to the respective Party at the following addresses (or at such other address for a Party as may be specified in a notice given in accordance with this Section 17.4). Notices sent in accordance with this Section 17.4 will be deemed effective: (i) when received, if delivered by hand (with written confirmation of receipt); (ii) when received, if sent by an internationally recognized overnight courier (receipt requested); or (iii) on the date sent by email (in each case, with confirmation of transmission, and only if an email address is provided by a Party to the other Party in a notice given in accordance with this Section 17.4), if sent during normal business hours of the recipient, and on the next day if sent after normal business hours of the recipient:

 

if to Manufacturer:

 

FREYR Battery, Inc.

6&8 East Court Square, Suite 300

Newnan, Georgia 30263

Attention: Compliance Officer

Email: compliance-officer@freyrbattery.com

 

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with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom (UK) LLP

22 Bishopsgate

London, EC2N 4BQ

  Attention:  Denis Klimentchenko
  Danny Tricot
  Email:  denis.klimentchenko@skadden.com
  danny.tricot@skadden.com

 

if to Service Provider, to:

 

Trina Solar (U.S.), Inc.

7100 Stevenson Boulevard

Fremont, CA 94538

Attention: Legal Department; Jianfeng Wu

Email: jianfeng.wu@trinasolar.com

 

with a copy (which shall not constitute notice) to:

 

Dorsey & Whitney LLP

51 West 52nd Street

New York, NY 10019-6119

United States

  Attention:  Catherine X. Pan-Giordano
  Kevin Maler
  Email:  pan.catherine@dorsey.com
  maler.kevin@dorsey.com

 

17.5Interpretation. For purposes of this Agreement: (i) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (a) to Sections and Schedules refer to the Sections of, and Schedules attached to this Agreement; (b) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

 

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17.6Entire Agreement; Termination of Prior Agreements. This Agreement, together with all schedules and attachments and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The Parties acknowledge that, effective as of the Effective Date, the Parties to the Prior Agreements have entered into a termination agreement effective as of the Effective Date.

 

17.7Amendment; Waiver. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.

 

17.8Severability. If any term or provision of this Agreement is invalid, illegal, void or unenforceable in any jurisdiction, such invalidity, illegality, voidability or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The Parties further agree to replace such invalid, illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal, void or unenforceable provision.

 

17.9Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

17.10Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement.

 

[signature page follows]

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first above written.

 

Trina Solar (U.S.), Inc.  FREYR Battery, Inc.
     
/s/ Steven Zhu   /s/ Daniel Barcelo
Name:  Steven Zhu   Name:  Daniel Barcelo
Title: President, Director   Title: Authorized Signatory

 

[Signature Page to Module Operational Support Agreement] 

 

 

Exhibit 10.7

 

SALES AGENCY AND AFTERMARKET SUPPORT AGREEMENT

 

This SALES AGENCY AND AFTERMARKET SUPPORT AGREEMENT (“Agreement”) is made effective December 23, 2024 (the “Effective Date”) between Trina Solar (U.S.), Inc., a Delaware corporation, with its principal place of business at 7100 Stevenson Boulevard, Fremont, CA 94538 (“TUS”), and Trina Solar US Manufacturing Module 1, LLC, a Texas limited liability company, with offices at 1200 Sunrise Road, Wilmer Texas 75125 (“TUM 1”). TUS and TUM 1 hereinafter are referred to individually as a “Party” or collectively as the “Parties”.

 

(A)WHEREAS, TUS and TUM 1 are parties to that certain Marketing and Services Agreement (the “Prior Agreement”), dated July 16, 2024, pursuant to which TUS provided certain marketing and administrative services necessary for TUM 1’s operation of the Solar Module Manufacturing Facility (as defined below);

 

(B)WHEREAS, Trina Solar (Schweiz) AG, an entity organized under the Laws of Switzerland and an Affiliate of TUS (“TSW”), and FREYR Battery, Inc., a Delaware corporation and, following Closing (as defined below), an Affiliate of TUM 1 (“FREYR”), entered into that certain Transaction Agreement effective as of November 6, 2024 (the “Transaction Agreement”), and, as a result of the transactions contemplated in the Transaction Agreement, TUM 1 will no longer be an indirect subsidiary of TSW and will become an indirect subsidiary of FREYR upon the closing of the transactions contemplated in the Transaction Agreement (the “Closing”);

 

(C)WHEREAS, under Section 6.9 of the Transaction Agreement, TSW and FREYR agreed to negotiate in good faith, prior to the Closing, to amend, restate and rename the Prior Agreement substantially on the terms set forth in the Term Sheet for the Sales Agency and Aftermarket Agreement set forth on Schedule A-8 to the Transaction Agreement;

 

(D)WHEREAS, each of TUS and TUM 1 agree to amend, restate and rename the Prior Agreement, on behalf of itself and its Affiliates, on the terms and conditions set forth herein and agree to enter into this Agreement effective as of the Effective Date; and

 

(E)WHEREAS, this Agreement amends, restates and renames the Prior Agreement on the terms and conditions set forth in this Agreement.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein, the Parties agree as follows:

 

1.Definitions. In addition to other terms defined in this Agreement, the following terms will have the assigned meaning when used in this Agreement:

 

1.1Adjusted EBITDA” means for TUM 1 or for TUM 1 and TUM 2, as applicable, the sum of (i) consolidated net income, determined in accordance with GAAP, plus (ii) without duplication and to the extent deducted in determining the consolidated net income, in each case, determined in accordance with GAAP, the sum of (A) consolidated interest expense, (B) consolidated income Tax expense and (C) all amounts attributed to depreciation or amortization less (iii) the G&A Allocation less (iv) to the extent not taken into account in calculating consolidated net income, all costs and expenses contemplated by the Commercial Agreements including the 5-plus GW Commissions, the Warranty and Aftermarket Support Fees and the Services Cost and Expenses (as defined in the Module Operational Support Agreement) but excluding, the Service Fee (as defined in the Module Operational Support Agreement) and the Bonus Commission.

 

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1.2Affiliate” of any Person means another Person that directly or indirectly through one of more intermediaries Controls, is Controlled by or is under common Control with, such first Person.

 

1.3Amended IP License Agreement” means the Intellectual Property License Agreement between TCZ and TUM 1 dated July 16, 2024, as amended by that certain Amendment No. 1 to be executed on or before the Closing Date by TCZ and TUM 1.

 

1.4Annual Commission and Royalty Cap” means an aggregate cap per calendar year of two hundred million dollars ($200,000,000) for all payments by TUM 1 (i) pursuant to the Trademark License Agreement with respect to the Initial Trademark Royalties (as such term is defined in the Trademark License Agreement), (ii) pursuant to the Amended IP License Agreement with respect to the Initial IP Royalties (as such term is defined in the Amended IP License Agreement) (together, the foregoing (i) and (ii), “Royalties”) and (iii) of Commissions payable pursuant to this Agreement.

 

1.1Business Day” means each day that is not (i) a Saturday, Sunday, or (ii) other day on which banking institutions located in Shanghai, People’s Republic of China, New York, New York, are or obligated by Law or executive order to close.

 

1.2Closing Date” means the date on which the Closing occurs in accordance with the Transaction Agreement.

 

1.3Codemeans the Internal Revenue Code of 1986, as amended.

 

1.5Commercial Agreements” means (i) this Agreement; (ii) the Amended IP License Agreement; (iii) the Solar Cells Sales Agreement; (iv) the Polysilicon Sales Agreement; (v) the Module Operational Support Agreement; (vi) the Trademark License Agreement; (vii) the IP License Agreement; (viii) the IP Sublicense Agreement; (ix) the TUS Offtake Agreement; (x) the Solar Cell Operational Support Agreement; and (xi) the Solar Wafer Sales Agreement.

 

1.6Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled” and “under common Control with” have correlative meanings.

 

1.7Covered Products” means Solar Modules branded with Trina Licensed Trademarks and sold by TUM 1 in the Territory, including, any Solar Modules sold by TUM 1 under the Current Offtake Agreements. As of the Effective Date, the Covered Products are set forth on Exhibit C attached hereto.

 

1.8Credit Agreement” means that certain Credit Agreement, dated July 16, 2024, by and among TUM 1, as borrower, HSBC Bank USA, N.A., as administrative agent, HSBC Bank USA, N.A., as collateral agent, and the other lenders from time to time party thereto, as amended from time to time.

 

1.9Current Offtake Agreements” means the TUS Offtake Agreement and the RWE Offtake Agreement.

 

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1.10Customer” means each purchaser of Covered Products in the Territory.

 

1.11Customer Contract” means a written contract by and between TUM 1, as seller, and a Customer, as purchaser, in a form adopted by TUM 1 in accordance with Section 3.2.

 

1.12Encompass Stock Purchase Agreement” means that certain Convertible Series A Preferred Stock Purchase Agreement, dated as of November 6, 2024, entered into by and between FREYR and the Purchasers listed on Schedule I thereto.

 

1.13Facility Investment Decision” means the decision by FREYR to proceed with its final investment decision with respect to the Solar Cell Manufacturing Facility under the Encompass Stock Purchase Agreement. For avoidance of doubt, the date on which the Facility Investment Decision is deemed to be made for purposes of this Agreement will be the date such decision is made under the Encompass Stock Purchase Agreement.

 

1.14GAAP” means generally accepted accounting principles in the United States, as in effect on the date or for the period with respect to which such principles are applied as adopted by FREYR in preparation of its annual financial statements.

 

1.15G&A Allocation” means (i) eight million U.S. dollars (8,000,000 U.S. dollars) until the date on which the Facility Investment Decision is made by FREYR and (ii) fifteen million U.S. dollars (15,000,000 U.S. dollars) thereafter.

 

1.4Governmental Authority” means any nation or government; any state, municipality or other political subdivision thereof; and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, taxing, regulatory, administrative or other similar functions of, or pertaining to, governance; and any executive official thereof.

 

1.16GW” means gigawatts.

 

1.17Intellectual Property” means any and all intellectual property, industrial property rights and rights in confidential information of every kind and description throughout the world, including all U.S. and foreign (i) patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, (ii) trademarks, service marks, names, corporate names, trade names, domain names, logos, slogans, trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (including all registrations and applications for registration of the foregoing), (iii) copyrights (including all registrations, applications for registration and renewal rights) and copyrightable subject matter, (iv) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing, (v) trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, formulae, models, and methodologies, (vi) rights of publicity, privacy, and rights to personal information, (vii) moral rights and rights of attribution and integrity and (viii) all rights in the foregoing and in other similar intangible assets.

 

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1.18IP License Agreement” means the Intellectual Property License Agreement, to be executed on or before the Closing Date, between TCZ, as licensor, and FREYR, as licensee.

 

1.19“IP Sublicense Agreement” means IP Sublicense Agreement, to be executed on or before the Closing Date, between FREYR, as sublicensor, and TUM 1, as sublicensee.

 

1.20“Knowledge” means and its cognates mean, with regard to TUS, the actual knowledge of the Persons on Schedule A after reasonable enquiry.

 

1.21“Law” means any U.S. or non-U.S. federal, state, provincial, local or other constitution, law, statute, ordinance, rule, directive, regulation, published administrative position, policy or principle of common law issued, enacted, adopted, promulgated, implemented or otherwise put into legal effect by or under the authority of any Governmental Authority and any judgments, decisions, orders and awards made in respect of the foregoing, including for the avoidance of doubt any stock exchange rules.

 

1.22Module Operational Support Agreement” means the Operational Support Agreement, to be executed on or before the Closing Date, between TUS, as service provider, and FREYR, as manufacturer.

 

1.23Polysilicon Sales Agreement” means the Amended and Restated Sales Agreement (Polysilicon), to be executed on or before the Closing Date, between TVNW, as buyer, and TUM 1, as seller, amending and restating the Intercompany Sales Agreement between TVNW and TUM 1 dated July 16, 2024.

 

1.24Person” means any individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).

 

1.25RWE Offtake Agreement” means that certain Supply Contract by and between TUS and RWE Investco EPC Mgmt, LLC dated July 12, 2024, as amended from time to time.

 

1.26Sales Price” means the amount invoiced to each Customer for the sale of Covered Products calculated in accordance with the relevant Customer Contract. If and to the extent that pursuant to the relevant Customer Contract or otherwise TUM 1 grants the Customer any discount, rebate or otherwise reduces the invoices amount in connection with a rebate equal to the 45X Tax Credit granted for such Covered Products (a “45X Price Reduction”) and such reduction is not reflected on the invoice, then the Sales Price shall be reduced by the amount of such discount, rebate or other reduction.

 

1.27Services” means (i) the Marketing and Sales Services and (ii) the Aftermarket Support Services, in each case, under this Agreement.

 

1.28Service Fees” means (i) the Commissions and (ii) the Warranty and Aftermarket Support Fee.

 

1.29Solar Cell Manufacturing Facility” means the manufacturing facility to be developed and constructed by TUM 2, or any other Affiliate of TUM 1 or FREYR, after Closing, to be located in the United States.

 

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1.30Solar Cells” means the solar photovoltaic P-Type or N-Type cells meeting certain technical and quality control standards to be included in the Covered Products.

 

1.31Solar Cell Operational Support Agreement” means the Solar Cell Operational Support Agreement, to be executed after the Closing Date, between TUS, as service provider, and FREYR, as manufacturer, as of the effective date of such agreement.

 

1.32Solar Cells Sales Agreement” means the Amended and Restated Sales Agreement (Solar Cells), to be executed on or before the Closing Date, between TED, as seller, and TUM 1, as buyer, amending and restating the Intercompany Sales Agreement between TED and TUM 1 dated July 16, 2024.

 

1.33Solar Modules” means the solar photovoltaic energy generating modules manufactured by or for TUM 1.

 

1.34Solar Module Manufacturing Facility” means the manufacturing facility owned by TUM 1 located at 1200 North Sunrise Road, Wilmer, Texas.

 

1.5Solar Wafer Sales Agreement” means the Sales Agreement (Solar Wafers) to be executed after the Closing Date between TED, as supplier, and TUM 2, as buyer.

 

1.6Sub-Representatives” means sub-representatives, subcontractors or other agents engaged by TUS to perform TUS’s obligations under this Agreement, other than Affiliates of TUS.

 

1.35Target Price” means the target price, for each Covered Product, determined in accordance with Exhibit A.

 

1.36TCZ” Trina Solar Co., Ltd., a company incorporated in the People’s Republic of China.

 

1.37TED” means Trina Solar Energy Development Pte. Ltd, a company organized under the Laws of the Republic of Singapore.

 

1.38Territory” means the United States of America.

 

1.39“Third Party” means any Person other than TUM 1, TUS, and their respective Affiliates.

 

1.40Third-Party Service Provider” means a Third Party engaged by TUS to perform a portion of the Aftermarket Support Services, other than an Affiliate of TUS.

 

1.41Trademark License Agreement” means the Amended and Restated Trademark License Agreement, to be executed on or before the Closing Date, between TUS and TUM 1, amending, restating, replacing and renaming the Trademark License Agreement between TCZ and TUM 1 dated July 16, 2024.

 

1.42Trina Licensed Trademarks” means those trademarks, service marks or trade names licensed to TUM 1 under the Trademark License Agreement.

 

1.43TUM 2” means Trina Solar US Manufacturing Cell 1, LLC, a limited liability company organized under the Laws of Oklahoma.

 

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1.44TUS Offtake Agreement” means the Supply Contract, to be executed on or before the Closing Date, between TUM 1, as supplier, and TUS, as purchaser, amending and restating the Supply Agreement between TUM 1 and TUS dated July 16, 2024.

 

1.45TVNW” means Trina Solar (Viet Nam) Wafer Company Limited, a company organized under the Laws of Vietnam.

 

1.46Warranty Provider” means TCZ.

 

2.Appointment of TUS as Sales Representative.

 

2.1Appointment. TUM 1 hereby appoints TUS, and TUS hereby accepts such appointment, as TUM 1’s exclusive sales representative to market and promote Covered Products in the Territory during the Term. TUM 1 shall not, directly or indirectly (other than through TUS), authorize or appoint any third-party (other than TUS) to act as a sales representative for Solar Modules manufactured by or for TUM 1 to customers and potential customers within the Territory and shall not itself actively and directly engage in sale efforts with respect to the Covered Products except in coordination with TUS. TUM 1 shall promptly pass on to TUS any inquiries received from any potential customer regarding sales of Covered Products.

 

2.2Sub-Representatives. TUS shall be permitted to appoint its Affiliates and Sub-Distributors to perform its obligations hereunder, provided that (i) such Affiliates and Sub-Representatives are bound by obligations of confidentiality that are consistent with Section 8 of this Agreement, (ii) TUS shall in all cases retain full responsibility for the provision of the Services to be performed by any such Affiliates and Sub-Representatives and (iii) with regard to Sub-Distributors, TUM 1 has approved in writing, such approval not to be unreasonably withheld, conditioned or delayed.

 

3.Responsibilities.

 

3.1Marketing and Sales Activities. During the Term and subject to the terms and conditions of this Agreement, TUS shall provide services to TUM 1 relating to the marketing and sales of Covered Products in the Territory (the “Marketing and Sales Services”).

 

3.2Customer Contracts

 

(i)During the Term, TUS will, in good faith, (a) use reasonable best efforts to identify potential Customers for the sale of Covered Products with the aim that the total sales of Covered Products at all times, and on a reasonable forward basis, equals 5 GW or such other maximum capacity of the Solar Module Manufacturing Facility (“Opportunities” and each an “Opportunity”), (b) negotiate terms and conditions on which such prospective Customers would agree to purchase Covered Products, (c) reflect such terms and conditions in a draft Customer Contract. Unless TUS and TUM 1 agree otherwise in writing, in connection with each such Opportunity, TUS, Customer and TUM 1 will enter into a non-disclosure agreement acceptable to all such parties.

 

(ii)Promptly upon identifying an Opportunity and finalizing a draft of a Customer Contract, TUS will present the Opportunity with reasonable detail about the potential Customer, its proposal and the draft Customer Contract to TUM 1 by written notice (email is sufficient).

 

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(iii)TUM 1 will reasonably consider all Opportunities and draft Customer Contracts presented by TUS and will promptly notify TUS in writing (email is sufficient) as to whether it accepts or declines each Opportunity, which will be at TUM 1’s sole discretion (any Opportunity accepted, an “Accepted Opportunity”).

 

(iv)With respect to each Accepted Opportunity and subject to Section 3.2(v), TUM 1 will use commercially reasonable efforts to enter into a Customer Contract on the terms presented by TUS, provided that TUM 1 and the relevant Customer may agree to any amendments or modifications to the draft Customer Contract in their sole discretion, provided further that such amendments shall not create additional liability or risk to TUS as compared to the draft Customer Contract without TUS’s prior written consent.

 

(v)TUM 1 may decline to pursue any Opportunity, including any Accepted Opportunity, in its sole discretion. After declining such Opportunity, TUM 1 may, but is not required to, provide to TUS the revised terms and conditions on which it would accept such Opportunity (as revised) and TUS will consider in good faith, with the relevant Customer, whether to pursue such revised Opportunity and in any such case, this Section 3.2 shall apply again as if it was a new Opportunity.

 

(vi)TUS shall within ten (10) Business Days of the last day of each month provide to TUM 1, in writing, (a) a summary of reasonably viable Opportunities during such period, regardless of if it has been presented as an Opportunity under this Section 3.2, including material communications; and commercial terms, including name and category of customers, delivery time, volume, price, type of Solar Module; (b) marketing and sales plans with respect to the Services; (c) any updates and/or changes to information previously provided to TUM 1 under this Section 3.2(vi); and (d) any other information deemed material by TUS in its internal sales tracking ((a), (b), (c) and (d) collectively, “Sales Information”). If requested by the TUM 1 Project Manager, the Project Manager, or Operational Committee (as defined in the Module Operational Support Agreement), or any of its relevant Operational Subcommittees (as defined in the Module Operational Support Agreement), shall meet and discuss the Sales Information in good faith from time to time.

 

3.3Aftermarket Support Services. During the Term and subject to the terms and conditions of this Agreement, TUS shall, on behalf of itself or through the use of an Affiliate, provide the aftermarket support and warranty support services set forth below (the “Aftermarket Support Services”) to Customers:

 

(i)host and manage a call center for Customer complaints about the Covered Products;

 

(ii)respond to and track Customer complaints about the Covered Products;

 

(iii)cooperate with TUM 1 to inspect Covered Products that are alleged to be in violation of the Product Warranty for such Covered Products;

 

(iv)cooperate with TUM 1 to manage inventory of Covered Products that have been returned by Customers under valid claims under the Product Warranty for such Covered Products; and

 

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(v)cooperate with TUM 1 to manage the resolution of claims from Customers for any Covered Products that are in breach of a Product Warranty,

 

for the avoidance of doubt, if any replacement Covered Products or spare parts are needed for TUS to provide the Aftermarket Support Services, TUM 1 shall provide such solar modules or parts to TUS at TUM 1’s own cost and expense.

 

3.4Subcontracting of Aftermarket Support Services. TUM 1 acknowledges and agrees that TUS may provide any or all of the Aftermarket Support Services, in whole or in part, to TUM 1 directly or through one or more of its Affiliates or Third-Party Service Providers, provided that (i) such Affiliates or Third-Party Service Providers are bound by obligations of confidentiality that are consistent with Section 8 of this Agreement, (ii) TUS shall in all cases retain full responsibility for the provision of the Aftermarket Support Services to be performed by any such Affiliates or Third-Party Service Provider and (iii) TUM 1 shall have no obligations to such Affiliates or Third-Party Services Providers to pay any fees or expenses. For the avoidance of doubt, the Warranty and After Market Support Fee shall be the sole fee, cost or expense payable with respect to the Aftermarket Support Services, except for any replacement Covered Products or spare parts that are needed for TUS to provide the Aftermarket Support Services, which shall be provided by TUM 1 at its own cost and expenses.

 

3.5Services Standards. TUS agrees that the Services will be provided (i) at the same quality level as such Services would have been provided by a professional provider of such Services; (ii) at least consistent with the practices used and adopted by (a) Service Provider with respect to similar services to the Marketing and Sales Services and (b) Service Provider and Warranty Provider with respect to similar services to the Sales and Aftermarket Support Services; (iii) using employees and contractors who are qualified, experienced, knowledgeable with and trained for the tasks assigned to such individuals; and (iv) in accordance with the terms and conditions of this Agreement.

 

3.6Product Warranty.

 

(i)Warranty Summary. Without prejudice to Section 3.3, Warranty Provider shall be responsible for providing the product warranty set forth on Exhibit B to each of the Customers for all Covered Products sold by TUM 1 (the “Product Warranty”), which included all remedies available to Customers as set forth in the Product Warranty and applicable laws.

 

(ii)Buyer Assignment of Warranty. Each Customer may assign or otherwise transfer its rights under the Product Warranty to any Third Party in accordance with the Product Warranty’s terms and conditions, including, for the avoidance of doubt that each Customer may transfer rights under the Product Warranty to any subsequent purchaser of Covered Products. For avoidance of doubt, the Product Warranty is the sole warranty for the Covered Products, is provided by Warranty Provider, and no additional warranty is provided by TUM 1. SUCH PRODUCT WARRANTY IS PROVIDED SOLELY BY WARRANTY PROVIDER, NOT TUM 1, AND CONTAINS THE SOLE PRODUCT WARRANTY OBLIGATIONS APPLICABLE TO THE COVERED PRODUCTS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SUCH PRODUCT WARRANTY PROVIDES TUM 1’S SOLE AND EXCLUSIVE REMEDIES UNDER ANY THEORY OF RECOVERY, FOR ANY CLAIM WITH RESPECT TO THE COVERED PRODUCTS OR THEIR FAILURE TO PERFORM, WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, WARRANTY, TORT (INCLUDING FAULT, NEGLIGENCE, AND STRICT LIABILITY), STATUTE OR OTHERWISE, AND EVEN IF THE REMEDIES SET FORTH THEREIN ARE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. TUM 1 DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE; THERE ARE NO OTHER WARRANTIES GIVEN, EXPRESS OR IMPLIED.

 

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3.7Product Warranty Amendment. The Product Warranty may only be changed as related to the Covered Products sold to Customers under each Customer Contract to be entered into between TUM 1 and the relevant Customer, upon TUM 1’s approval which shall not be unreasonably withheld or delayed, and each Customer’s approval.

 

3.845X Tax Credit. TUM 1, or, if TUM 1 is disregarded as an entity separate from its owner for United States federal income tax purposes, the regarded owner of TUM 1’s assets for such purposes, shall use reasonable efforts to obtain the Advanced Manufacturing Production Credit, as defined in Section 45X of the Code enacted pursuant to Section 13502 of Public Law 117-169, 136 Stat. 1818 (August 16, 2022), commonly known as the Inflation Reduction Act of 2022 with respect to the production of Solar Modules at the Solar Module Manufacturing Facility (the “45X Tax Credit”); provided that such benefits may be obtained by claiming the 45X Tax Credit, by electing under section 6417 of the Code with respect to the 45X Tax Credit, or by electing under section 6418 of the Code with respect to the 45X Tax Credit.

 

3.9Marketing Materials. From time to time during the Term, TUS will, using reasonable skill and in good faith develop sales literature, brochures, catalogs, price lists, and other related marketing materials for promotion of the Covered Products in the Territory. TUS will provide copies of all such marketing materials to TUM 1 for review and will consider suggestions by TUM 1 in good faith. Except with regard to TUM 1’s and its Affiliates’ trademarks, TUS retains all right, title and interest in and to all marketing materials developed by TUS and all modifications and improvements to such marketing materials.

 

3.10Consents and Permits. Each of the Parties shall obtain and maintain all necessary licenses, permits, waivers, registrations, grants, authorizations, approvals, certifications and consents required perform its obligations hereunder.

 

3.11Cooperation; Delays. Each Party shall (i) cooperate with the other Party in the performance of its obligations under this Agreement; (ii) consider in good faith all recommendations made by the other Party with respect to the subject matter of this Agreement; and (iii) require that its Project Manager (as defined below) respond promptly to any reasonable requests from the other Party for instructions, information, or approvals required by such Party in connection with the obligations under this Agreement. If a Party’s performance of its obligations under this Agreement is prevented or delayed by any action or omission of the other Party, such first Party shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the other Party, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

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4Operational Management.

 

(i)Project Managers. TUS and TUM 1 each hereby appoint a “Project Manager” to act as the primary point of contact for such Party regarding day-to-day matters relating to each Party’s obligations under this Agreement. Parties agree to appoint their respective Project Manager as soon as practical after the Effective Date. Each Party may replace its Project Manager by written notice (email sufficient) to the other Party’s Project Manager (provided that notice of any replacement of a Project Manager shall be effective only upon receipt of such written notice).

 

(ii)Disputes. To the extent the Project Managers are unable to resolve any disagreements with respect to the Services, they shall refer the dispute to the Operational Committee established under Section 5.3 of the Module Operational Support Agreement. The Operational Committee or any relevant Operational Subcommittee, or Executives (as defined in the Module Operational Support Agreement) shall resolve such dispute in accordance with Section 5.3(vi) of the Module Operational Support Agreement. If, after an additional thirty (30) days from the meeting of such Executives, the Parties are still unable to resolve a deadlock, either Party may seek resolution in accordance with Section 16.

 

5.Term; Termination.

 

5.1Term. This Agreement is effective as the Effective Date and shall continue until the later of (1) the fifth (5th) anniversary of the date hereof and (2) the date the Obligations (as defined in the Credit Agreement) have been repaid in full in cash or otherwise discharged in accordance with the Credit Agreement (the “Term”), unless terminated earlier as provided herein; the Parties may mutually agree in writing to extend the term of this Agreement, if so agreed, the Term will include any such extension period.

 

5.2Early Termination. In addition to any other rights of termination provided under this Agreement, this Agreement may be terminated as follows:

 

(i)by either Party if the other Party is in material breach of this Agreement and fails to cure such breach within forty-five (45) days after written notice thereof by the non-breaching Party;

 

(ii)by either Party if the other Party is in material breach of another Commercial Agreement and fails to cure such breach within the cure period set forth therein unless the Obligations (as defined in the Credit Agreement) have been repaid in full in cash or otherwise discharged in accordance with the Credit Agreement (in which case this Section 5.2(ii) does not apply);

 

(iii)by either Party upon written notice to the other Party upon (a) the discontinuance, dissolution, liquidation and/or winding up of the other Party’s business, (b) the making, by the other Party, of any general assignment or arrangement for the benefit of creditors; the filing by or against the other Party of a petition to have it adjudged bankrupt under bankruptcy or insolvency Laws, unless such petition shall be dismissed or discharged within sixty (60) days, (c) the appointment of a trustee or receiver to take possession of all or substantially all of such Party’s assets, where possession is not restored to the appropriate Party within thirty (30) days or (d) the attachment, execution or judicial seizure of all or substantially all of the other Party’s assets where attachment, execution or judicial seizure is not discharged within thirty (30) days; and

 

(iv)at any time upon the mutual written agreement of the Parties.

 

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5.3Effect of Termination. Upon termination of this Agreement for any reason, (i) TUS shall have no further obligation to provide Services; (ii) TUM 1 (a) shall have no obligation to pay for any Service incurred after the date of termination, and (a) will be responsible for all such services described in Section 3.1 and Section 3.3, unless TUS agrees in writing to provide all or any of such Services during a wind-down period after termination of this Agreement; (iii) each Party shall return or destroy all Confidential Information of the receiving Party in accordance with Section 8. Further, the termination of this Agreement shall not release any Party from the obligation to make payment of all amounts then or thereafter due and payable hereunder, including Commission for any Opportunity presented by TUS to TUM 1 prior to the termination to the extent such Opportunity leads to a Customer Contract (even if such Customer Contract is not signed until after the termination).

 

5.4Suspension of Obligations. In addition to the right to terminate pursuant to Section 5.2(i), if either Party does not cure a material breach as set forth in Section 5.2(i), then the non-breaching Party may, without prejudice to any other right or remedy available to such Party, suspend performance of its obligations hereunder until such material breach has been cured.

 

5.5Survival. The following sections of this Agreement shall survive the termination or expiration of this Agreement indefinitely: Sections 1, 6.3, 5.5, 7, 9, 10, 11, 12, 13, 14, 16, and 17.

 

6.Service Fees.

 

6.1Commissions. Subject to Section 6.5, as partial consideration for the Marketing and Sales Services, TUM 1 shall pay to TUS the following:

 

(i)for sales of Covered Products representing the first 1.5 GW of Solar Module capacity under this Agreement, a commission equal to (a) $0.02 per watt of such Covered Products if TUM 1 produced such Covered Products using Solar Cells supplied to TUM 1 from outside of the Territory, including those Solar Cells supplied under the Solar Cells Supply Agreement; and (b) $0.035 per watt of such Covered Products if TUM 1 produced such Covered Products using Solar Cells supplied to TUM 1 from within the Territory (the “1.5 GW Commissions”);

 

(ii)for sales of Covered Products representing any additional GW of Solar Module capacity, after the sales of the first 1.5 GW of Covered Products under (i) above, a commission equal to (a) two percent (2%) of the Sales Price of such Covered Products, plus (b) for sales of Covered Products that have a Sales Price that exceeds the Target Price, an amount equal to fifty percent (50%) of the amount that equals to: Sales Price minus the Target Price (the “3.5-plus GW Commissions” and together with the 1.5 GW Commissions, the “5-plus GW Commissions”); and

 

(iii)in addition, an annual bonus equal to five percent (5%) of the higher of (1) Adjusted EBITDA of TUM 1 only, and (2) sixty percent (60%) of Adjusted EBITDA for TUM 1 and TUM 2 (the “Bonus Commissions” and together with the 5-plus GW Commissions, the “Commissions.”). Notwithstanding the foregoing, no Bonus Commissions shall be paid to TUS for any year where no Marketing and Sales Services are rendered during the relevant year by TUS to TUM 1.

 

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6.2Warranty and Aftermarket Support Fee. As partial consideration for the Product Warranty with respect to the Covered Products as set forth under this Agreement and the Aftermarket Support Services, TUM 1 shall pay TUS one percent (1%) of the Sales Price of such Covered Product (the “Warranty and Aftermarket Support Fee”) to be paid as set forth in Section 6.4(iii).

 

6.3Allocation of Services Fees. The Parties agree the Services Fees provide partial consideration for the performance of TUS’ obligations under this Agreement and, in addition, provides partial consideration for the rights and licenses granted under the IP License Agreement, the Trademark License Agreement and other Commercial Agreements. For the avoidance of doubt, TUS may allocate the Services Fees to the IP License Agreement, the Trademark License Agreement and other Commercial Agreements in its sole discretion.

 

6.4Payment of Service Fees.

 

(i)Payments of 5-plus GW Commissions.

 

(a)Commission Notice; Invoice. Within ten (10) Business Days of the relevant Quarterly Date (as defined in the Credit Agreement), TUM 1 shall deliver to TUS (email sufficient) a written report that sets forth, for such quarter, (1) a list of all Customer Contracts entered into by TUM 1 during such period; (2) a report listing (x) any invoices actually paid by Customers in accordance with the terms of the applicable Customer Contract and (y) any 45X Price Reduction given to a Customer in accordance with the terms of the applicable Customer Contract, in each case, during such quarter; and (3) TUM 1’s calculation of the applicable 5-plus GW Commission amount, which shall be calculated based on payments actually received by TUM 1 from its Customers for sales of Covered Products during such quarter, and reasonable supporting detail (the “Commission Notice”). Within five (5) Business Days of the receipt of the Commission Notice from TUM 1, TUS shall invoice TUM 1 for the applicable 5-plus GW Commission. Subject to Section 6.4(iv), TUM 1 shall pay the amount of such invoice in U.S. dollars within thirty (30) days after the date of receipt of the invoice by TUM 1.

 

(b)Adjustments for 45X Tax Credit.

 

(1) If at the time of delivery of the Commission Notice, TUM 1 does not know the final amount of the 45X Tax Credit to be included in the Sales Price or Target Price, to the extent applicable, TUM 1 shall include its good faith estimate of the relevant amount of 45X Price Reduction that is reasonably likely to be passed through to Customers under Customer Contracts entered into during such periods as a rebate or discount (such amount the “Estimated 45X Tax Credit”), and TUM 1 may include such estimate in its calculation of the 3.5-plus GW Commission on the Commission Notice. For avoidance of doubt, if a Customer Contract does not provide a 45X Price Reduction then no such adjustment for 45X Tax Credit shall be made.

 

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(2) For any calendar year in which any 3.5-plus GW Commission has been based on an Estimated 45X Tax Credit, TUM 1 shall calculate and provide to TUS a written notice setting out the final 45X Tax Credit to be included in the Sales Price for such calendar year promptly following the date on which all amounts comprising the relevant 45X Tax Credit have either been received by TUM 1 or an Affiliate of TUM 1, or have been utilized by TUM 1 or an Affiliate of TUM 1 to reduce actual cash taxes for federal income tax purposes, determined on a with-and-without basis, upon claiming the relevant 45X Tax Credit on a tax return for the applicable calendar year (such amount, the “Actual 45X Tax Credit” and such notice, the “45X Notice”). The 45X Notice shall include TUM 1’s good faith calculation of (i) the difference between the Actual 45X Tax Credit and the Estimated 45X Tax Credit and (ii) an updated calculation of the 3.5-plus GW Commission (the “Updated 3.5-plus GW Commission”).

 

(3) To the extent (i) the Updated 3.5-plus GW Commission is higher than the amount set out in the Commission Notice and (ii) the aggregate amount paid in Commissions or Royalties for the relevant calendar year does not exceed the Annual Commission and Royalty Cap, TUM 1 shall pay TUS the difference between the Updated 3.5-plus GW Commission and the amount set out in the Commission Notice in cash no later than thirty (30) days after the date of the 45X Notice.

 

(4) To the extent the Updated 3.5-plus GW Commission is less than the amount set out in the Commission Notice, TUS shall pay TUM 1 the difference between the Updated 3.5-plus GW Commission and the amount set out in the Commission Notice in cash no later than thirty (30) days after the date of the 45X Notice.

 

(ii)Payment of Bonus Commissions.

 

(a)Promptly after FREYR files its annual report (“FREYR Annual Report”) with the Securities Exchange Commission (“SEC”), TUM 1 shall deliver to TUS, the calculation of the Bonus Commissions (together with reasonable supporting detail). Subject to Section 6.4(iv), upon receipt of the calculation of Bonus Commissions from TUM 1, TUS shall invoice TUM 1 for the Bonus Commissions and TUM 1 shall pay the amount of such invoice in U.S. dollars within thirty (30) days from the last day of each March of each year (the relevant Quarterly Date for purposes of the payment of Bonus Commission), provided the FREYR Annual Report was timely filed with the SEC.

 

(b)If FREYR fails to timely file its FREYR Annual Report in accordance with the rules promulgated under the Securities Exchange Act of 1934 or any other applicable rules of the SEC for more than thirty (30) days after such filing deadline, then the Parties shall meet and confer to discuss the calculation of the Bonus Commissions and TUM 1 shall provide its estimate of Adjusted EBITDA to TUS promptly thereafter (the “Bonus Commissions Estimate”). Subject to Section 6.4(iv), upon receipt of the calculation of the Bonus Commissions Estimate, TUS shall invoice TUM 1 for the Bonus Commissions Estimate and TUM 1 shall pay the amount of such invoice in U.S. dollars within thirty (30) days from the relevant Quarterly Date. Within fifteen (15) days of FREYR filing the late FREYR Annual Report with the SEC, TUM 1 shall deliver to TUS an updated calculation of the Bonus Commissions Estimate (together with reasonable supporting detail), if applicable (the “Updated Bonus Commissions”). Subject to Section 6.4(iv), if the Updated Bonus Commissions amount is greater than the Bonus Commissions Estimate, then TUS shall invoice TUM 1 for the difference between the Updated Bonus Commissions and Bonus Commissions Estimate and TUM 1 shall pay the amount of such invoice in U.S. dollars within thirty (30) days of the relevant Quarterly Date. If the Updated Bonus Commissions amount is less than the Bonus Commissions Estimate, then TUM 1 shall set off the difference between the Updated Bonus Commissions and the Bonus Commissions Estimate against amounts owed to TUS for Services in the following billing cycle; provided, however, that if the Updated Bonus Commissions is less than the Bonus Commissions Estimate for the last year of the Term, TUM 1 shall notify TUS of the amount of the excess of the Bonus Commissions Estimate over the Updated Bonus Commissions when it delivers the Updated Bonus Commissions to TUS, and TUS shall refund such excess within thirty (30) days thereafter.

 

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(c)If FREYR ceases to be a public company required to file an annual report with the SEC, TUM 1 shall deliver an audited financial statement of FREYR and calculation of the Bonus Commission (together with reasonable supporting detail) to TUS on or before April 30th of each calendar year following the calendar year during which the Marketing and Sales Services are provided for the calculation of Bonus Commissions, and TUS shall invoice TUM 1 for such Bonus Commissions and TUM 1 shall pay the amount of such invoice in U.S. dollars within thirty (30) days from the relevant Quarterly Date.

 

(iii)Payment of Warranty and Aftermarket Support Fees. The Warranty and Aftermarket Support Fees shall be invoiced in accordance with the provisions of Section 6.4(i), mutatis mutandis.

 

(iv)Payment Restrictions.

 

(1) No Service Fee shall be paid for any quarter where the conditions to make a Restricted Payment (as defined in the Credit Agreement) set out in Section 7.08(a) of the Credit Agreement (“Distribution Conditions”) are not satisfied.  Following any period of non-payment of Service Fees in accordance with this Section 6.4(iv)(1), on the first Quarterly Date where the Distribution Conditions are satisfied, TUM 1 shall pay any applicable Service Fees for that period and any Service Fees not previously paid to TUS, without interest.

 

(2) TUM 1’s obligation to pay the Services Fees and all other amounts due in connection with this Agreement is fully subordinated to TUM 1’s obligations under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement). TUS further waives any claims that it may be entitled to make under this Agreement until all the Obligations (as defined in the Credit Agreement) under the Credit Agreement have been discharged.

 

6.5Limitations on Commissions. The Commissions due under Section 6.1 are subject to the Annual Commission and Royalty Cap. TUM 1 shall have no obligation to pay any invoice issued by (i) TUS under Section 6.4(i) or 6.4(ii) or 6.4(iii) under this Agreement, (ii) TUS under the Trademark License Agreement or (iii) TCZ under the IP License Agreement to the extent that the aggregate amount of all invoices issued with respect to Commissions or Royalties for any calendar year exceeds the Annual Commission and Royalty Cap (any such invoice in (i), (ii) or (iii) in excess of the Annual Commission and Royalties Cap, an “Excess Invoice”). Promptly upon becoming aware of any Excess Invoice, TUM 1 shall notify TUS and TCZ in writing (email sufficient) providing reasonable evidence that the Annual Commission and Royalty Cap has been met or exceeded. TUS and TCZ shall promptly cancel any Excess Invoices, in whole or with respect to the part of such invoice that exceeds the Annual Commission and Royalty Cap, and shall not issue any invoices with respect to the Commissions or Royalties with respect to the applicable calendar year. If TUM 1 becomes aware it has paid any amount in excess of the Annual Commission and Royalty Cap during any calendar year to TUS or TCZ, it shall promptly notify TUS and TCZ in writing setting out the amount of such payment (“Excess Amount”), including reasonable detail of its calculations (“Excess Notice”). Within ten (10) Business Days of such Excess Notice TUS or TCZ shall pay the Excess Amount to TUM 1 in immediately available funds. For the avoidance of doubt, the Annual Commission and Royalties Cap shall apply to all Commissions or Royalties with respect to any calendar year, even if such amount becomes due during a following calendar year.

 

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6.6Disputed Payments. If TUS disputes in good faith TUM 1’s calculation of Service Fees or if TUM 1 disputes in good faith an invoice for Services provided by TUS (in each case, a “Payment Dispute”), the disputing Party shall provide to the other Party an explanation of the basis for the dispute and TUM 1 shall pay to TUS the portion of the invoice that is not in dispute by the due date. Thereafter, the Parties shall discuss and try to resolve the disputed amount within one (1) week of receipt of such notice of dispute (the “Dispute Period”). If the Parties resolve the Payment Dispute within the Dispute Period and the disputed amount is determined to be properly due and payable, then the relevant Party shall pay to the other Party such disputed amount on or before ten (10) days after such determination. If the Payment Dispute has not been resolved by the end of the Dispute Period, then the Payment Dispute shall be referred to the Operational Committee and shall be resolved in accordance with the terms set forth in Section 4(ii).

 

6.7Remedies for Failure to Pay Services Fees. Subject to Section 6.4(iv), 6.5 and 6.6, if TUM 1 fails to pay any Service Fees in accordance with the payment terms, then, without limiting TUS’ other rights and remedies, TUS shall have the right, in its sole discretion, to assess late charges in an amount equal to the lesser of 1.5% per month or, if lower, the maximum allowable under applicable Law. Except as expressly provided herein, TUM 1 shall have the right to withhold payments to TUS or reduce the amount of payments owed to TUS under this Agreement for fees, claims, damages, expenses or other amounts owed, or alleged to be owed, to TUM 1 from TUS under this Agreement or any other agreement.

 

6.8Taxes. TUS acknowledges that the payment of the Commissions or the Warranty and Aftermarket Support Fee by TUM 1 under this Agreement may be subject to withholding obligations and other deductions under applicable Law. TUM 1 shall withhold or deduct all such amounts that TUM 1 determines is required under applicable Law and shall remit such amounts to the proper taxing authorities without any obligation to make any additional payments.

 

7.Compliance with Laws. Each of TUS and TUM 1 shall comply with all Laws applicable to such Party and all Laws of the United States related to the performance of its obligations under this Agreement.

 

8.Confidentiality.

 

(i)Definition; Exclusions. Each Party acknowledges that, in connection with this Agreement, it will gain access to certain non-public, confidential, or proprietary information of the other Parties (“Confidential Information”). TUS’ Confidential Information includes its customer lists and its prospective customer lists. Confidential Information does not include information that at the time of disclosure is: (a) in the public domain; (b) known to the Party receiving it; (c) rightfully obtained by the receiving Party on a non-confidential basis from a Third Party; or (d) independently developed by the receiving Party without access to the other Party’s Confidential Information.

 

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(ii)Obligations. Each Party shall maintain each other Party’s Confidential Information in strict confidence, use it only in furtherance of this Agreement, and not disclose it to any other Person or entity, except to its employees, directors, officers, contractors, advisors, equity investors, lenders, and, with respect to TUM 1, Customer, in each case who (a) have a need to know such Confidential Information for such Party to exercise its rights or perform its obligations hereunder and (b) are bound by written nondisclosure agreements with such Person or entity. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to comply with an order of a court or other Governmental Authority, or as otherwise necessary to comply with applicable Law, provided that the Party making the disclosure pursuant to the order or in compliance with applicable Law shall first give written notice to the other Party as soon as reasonably practicable, to the extent legally permissible, to permit the other Party to object to the disclosure, and with respect to such order also shall first have made a reasonable effort to obtain a protective order to protect such disclosure.

 

(iii)Return of Confidential Information. Upon expiration or termination for any reason of this Agreement, the receiving Party shall immediately (a) return all Confidential Information of the disclosing Party to the disclosing Party, or (b) destroy it. At the same time, the receiving Party shall provide the disclosing Party with a written certificate signed by an authorized representative of the receiving Party on the return or destruction of all such Confidential Information.

 

9.Intellectual Property. All terms and conditions with respect to Intellectual Property relating to the Services, including, without limitation, the Parties’ respective ownership of Intellectual Property, each Party’s rights and licenses under Intellectual Property owned by the other Party and related representations and warranties, are set forth in the IP License Agreement and the Trademark License Agreement.

 

10.Privacy and Data Security. The Parties acknowledge and agree that the terms of Section 12 (Privacy and Data Security) of the Module Operational Support Agreement are incorporated herein by reference and will form a part of this Agreement as if set forth herein in their entirety (the “Privacy and Data Security Terms”), mutatis mutandi. The Privacy and Data Security Terms shall remain in effect until this Agreement is terminated or expires, even if the Module Operational Support Agreement is no longer in effect.

 

11.Representations and Warranties; Covenants

 

11.1Mutual Representations and Warranties; Covenants. Each Party hereby warrants as of the date hereof, and with respect to (iii) covenants that (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization; and (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement.

 

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11.2TUS Representations. TUS represents and warrants as of the date hereof of and covenants that to its Knowledge:

 

(i)the Services provided to TUM 1 under this Agreement do not and will not contain or use any computer programs, data, work, designs, materials, technology or other information that infringe, misappropriate or otherwise violate the rights of any Third Party; and

 

(ii)there is no claim pending or threatened in writing against TUS which may adversely affect TUS’ ability to provide the Services under this Agreement.

 

11.3DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

 

12.Indemnification

 

12.1Indemnification by TUS. TUS shall indemnify, defend, and hold harmless TUM 1, its Affiliates, and their respective officers, directors, members, managers, employees, and contractors (each, a “TUM 1 Indemnified Party”) from and against any loss, liability, or expense (including attorneys’ fees and costs) incurred by a TUM 1 Indemnified Party as a result of a claim or demand by an unaffiliated Third Party alleging or arising from (i) any breach of this Agreement by TUS; (ii) the negligence, gross negligence, willful misconduct or fraud by TUS, its Affiliates or its Affiliates’ officers, directors, members, managers or employees (including indirect employees provided through staffing agencies, contract employees); or (iii) TUS’ failure to comply with applicable Laws in the performance of the Services hereunder.

 

12.2Indemnification by TUM 1. TUM 1 shall indemnify, defend, and hold harmless TUS, its Affiliates, and their respective officers, directors, members, managers, employees, and contractors (each, a “TUS Indemnified Party”) from and against any loss, liability, or expense (including attorneys’ fees and costs) incurred by a TUS Indemnified Party as a result of a claim or demand by an unaffiliated Third Party alleging or arising from (i) any breach of this Agreement by TUM 1; (ii) TUM 1’s failure to comply with applicable Laws in the performance of this Agreement; or (iii) the negligence, gross negligence, willful misconduct or fraud by TUM 1, its Affiliates or its Affiliates’ officers, directors, members, managers, employees or its contractors.

 

12.3Procedures. The Party seeking to be indemnified pursuant to this Section 12 (as applicable, the “Indemnified Party”) shall be entitled to indemnification hereunder only: (i) if it gives written notice to the Party obligated to provide such indemnification hereunder (the “Indemnifying Party”) of any losses or claims, suits, or proceedings by Third Parties which may give rise to a claim for indemnification with reasonable promptness after receiving written notice of such claim (or, in the case of a proceeding, is served in such proceeding) or becoming aware of any such loss; provided, however, that failure to give such notice shall not relieve the Indemnifying Party of its obligation to provide indemnification, except if and to the extent that the Indemnifying Party is actually and materially prejudiced thereby, and (ii) once the Indemnifying Party confirms in writing to the Indemnified Party that it is prepared to assume its indemnification obligations hereunder, the Indemnifying Party has sole control over the defense of the claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to be represented by its own counsel at its own cost in such matters. Notwithstanding the foregoing, (x) no Indemnifying Party shall have the right to assume control over the assertion of any claim, or the commencement of any action, in either case with respect to Taxes of the Indemnified Party, provided that the Indemnified Party shall not settle or resolve any such claim or action if doing would reasonably be expected to adversely impact the Indemnifying Party, including increasing the Indemnifying Party’s obligations pursuant to this Agreement, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed; and (y) the Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party to make any admission, or to take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. Each Party shall reasonably cooperate with the other Party and its counsel in the course of the defense of any such suit, claim, or demand, such cooperation to include using reasonable efforts to provide or make available documents, information, and witnesses and to mitigate damages.

 

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12.4Indemnification Period. Neither Party will have liability to the other Party for indemnification under Sections 12(i) and 12(i), respectively, unless notice of the claim is given by the Indemnified Party within two (2) years of the date that the cause of action become known or should have become known by the Indemnified Party.

 

  13. Insurance. During the Term, each Party will obtain and maintain the insurance policies appropriate to such Party’s risks under this Agreement (as determined by each Party in its sole discretion). The obligations of each of the Parties under this Agreement shall not be limited by availability or collectability of the insurance policies carried by such Party.

 

14.Limitations on Liability

 

14.1EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12 AND EXCEPT FOR A PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, TRANSACTION LOSSES, OR OPPORTUNITY COSTS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.

 

14.2EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12 AND EXCEPT FOR MANUFACTURER’S OBLIGATION TO PAY SERVICE FEES IN FULL WHEN DUE, IN NO EVENT SHALL EITHER PARTY’S TOTAL, AGGREGATE LIABILITY TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE HIGHER OF (I) $50,000,000 AND (II) THE AMOUNTS PAID OR PAYABLE BY TUM 1 TO TUS UNDER THIS AGREEMENT FOR SERVICES IN THE EIGHTEEN (18) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIMS (THE “BASE CAP”).

 

14.3NOTWITHSTANDING ANY CONTRARY TERM IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING EACH PARTY’S OBLIGATIONS IN IN SECTION 12, EXCEED THE HIGHER OF (I) $100,000,000 AND (II) THE AMOUNTS PAID OR PAYABLE BY TUM 1 TO TUS UNDER THIS AGREEMENT FOR SERVICES IN THE THIRTY SIX (36) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIMS (THE “INDEMNITY CAP”).

 

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14.4FOR AVOIDANCE OF DOUBT, MANUFACTURER’S OBLIGATION TO PAY SERVICE FEES IN FULL WHEN DUE IS NOT SUBJECT TO THE BASE CAP OR TO THE INDEMNITY CAP.

 

15.Force Majeure. No Party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond such Party’s reasonable control (a “Force Majeure Event”). A Force Majeure Event includes any act, event or occurrence, whether it is foreseeable or unforeseeable, that materially affects the ability of either Party to perform any or all of its obligations under the Agreement and which is beyond the reasonable control of either Party and is not caused by each Party’s negligence or willful misconduct. Depending upon the facts and circumstances, a Force Majeure Event may include, but is not limited to: acts of God; tornados, hurricanes, typhoons, excessive rainfall, earthquakes, or other severe weather conditions; blight; famine; quarantines, epidemics, or pandemics (except for known and continuing effects of COVID-19 and its known variants prior to the Effective Date, including shelter-in-place orders, factory closures, employee repatriation and other restrictions, guidelines, closings, cancellations and/or precautionary measures undertaken by governmental action); any act of terrorism; war; sabotage; insurrection or civil strife; blockades or embargoes; explosions; regional or national labor disputes, including strikes; customs delays; failure of any Third Party shipping or delivery provider; closure or accidents involving harbors, docks, canals, or other infrastructure used by the shipping or transportation industries; shipping delays that could not be avoided through the exercise of reasonable diligence; and other unavoidable events. The affected Party will notify the other Party as soon as practicable after the occurrence of a Force Majeure Event, and shall use commercially reasonable efforts to mitigate or cure the effect of the Force Majeure Event. In the event that the Force Majeure Event continues for a period exceeding six (6) months, then either Party may suspend performance of this Agreement or terminate this Agreement upon written notice to the other Party. Neither Party shall pay damages to the other Party for termination of this Agreement due to a Force Majeure Event.

 

16.Governing Law and Jurisdiction; Waiver of Jury Trial; Equitable Remedies

 

16.1Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction). The application of the United Nations Conventions on the International Sale of Goods is explicitly excluded. Any legal suit, action or proceeding arising out of or based upon this Agreement shall properly and exclusively lie in the state and federal courts located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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16.2Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby or thereby. Each Party to this Agreement certifies and acknowledges that (a) no representative of any other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 16.2.

 

16.3Equitable Relief. Each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation, and in the event of such a breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including specific performance. The Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

 

17.Miscellaneous.

 

17.1Assignment.

 

(i)Neither Party may assign this Agreement to any Third Party, in whole or in part, including by operation of Law or otherwise without the prior written consent of the other Party. For purposes of this Agreement, any Change of Control of a Party shall be deemed an assignment. “Change of Control” means (a) an acquisition of the Party by another Person by means of any transaction or series of related transactions pursuant to which such other Person becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the voting stock of the relevant Party (including any reorganization, amalgamation, exchange offer, business combination, merger, consolidation or similar transaction), or (b) a sale, transfer, assignment, conveyance, or other disposition, directly or indirectly, in one or a series of related transactions, of all or substantially all of the assets of the Party. “Beneficial owner” means a beneficial owner as defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934. Prohibited assignments are null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ permitted successors and assigns.

 

(ii)Notwithstanding Section 17.1(i), TUM 1 may (a) subcontract a portion of its duties and obligations hereunder, (b) directly or indirectly, pledge, encumber, collaterally assign, transfer or otherwise grant a lien or other security interest on its rights hereunder (such pledge, encumbrance, assignment, transfer or grant, a “Pledge”) as collateral in connection with the Credit Agreement and (c) assign this Agreement in connection with a foreclosure (or a sale, assignment or other transfer in lieu of foreclosure) or other exercise of remedies of the Secured Parties (as defined in the Credit Agreement) (or any of their applicable representatives) with respect to the Pledge.

 

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17.2Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

17.3Independent Contractors. The relationship between TUS and TUM 1 is that of independent contractors. Nothing contained in this Agreement or any of the other Commercial Agreements creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between or among the Parties or any of their respective Affiliates for any purposes whatsoever (including for U.S. federal income tax purposes), neither Party shall, or shall permit its Affiliates to, hold itself out as an agent, partner, joint venturer, employer, employee or fiduciary of the other Party (or any of its Affiliates) in connection with this Agreement (including for U.S. federal income tax purposes), and neither Party has authority to contract or bind the other Party in any manner whatsoever.

 

17.4Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (other than routine communications having no legal effect) must be in writing and sent to the respective Party at the following addresses (or at such other address for a Party as may be specified in a notice given in accordance with this Section 17.4). Notices sent in accordance with this Section 17.4 will be deemed effective: (i) when received, if delivered by hand (with written confirmation of receipt); (ii) when received, if sent by an internationally recognized overnight courier (receipt requested); or (iii) on the date sent by email (in each case, with confirmation of transmission, and only if an email address is provided by a Party to the other Party in a notice given in accordance with this Section 17.4), if sent during normal business hours of the recipient, and on the next day if sent after normal business hours of the recipient:

 

If to Trina Solar (U.S.), Inc.:

 

7100 Stevenson Boulevard

Fremont

CA 94538

Attention: Legal Department; Steve Liang

Email:steve.liang@trinasolar.com

 

with a copy (which shall not constitute notice) to:

 

Dorsey & Whitney LLP

51 West 52nd Street

New York, NY 10019-6119

United States

Attention: Catherine X. Pan-Giordano
  Kevin Maler

Email:pan.catherine@dorsey.com
  maler.kevin@dorsey.com

 

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If to TUM 1:

 

6&8 East Court Square, Suite 300
Newnan, Georgia 30263
Attention: Compliance Officer
Email: compliance-officer@freyrbattery.com

 

with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London, EC2N 4BQ
Attention: Denis Klimentchenko and Danny Tricot

Email:denis.klimentchenko@skadden.com
  danny.tricot@skadden.com

 

17.5Interpretation. For purposes of this Agreement: (i) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (a) to Sections and Exhibit refer to the Sections of, and Exhibits attached to this Agreement; (b) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

 

17.6Entire Agreement. This Agreement, together with all Exhibit and attachments and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. This Agreement amends, restates and renames the Prior Agreement in its entirety, effective as of the Effective Date, and this Agreement continues in force without interruption on the terms and conditions set forth herein.

 

17.7No Third-Party Beneficiaries. Except as provided in Section 12.1 (Indemnification by TUS) and Section 12.2 (Indemnification by TUM 1), this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

 

17.8Amendment; Waiver. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.

 

17.9Severability. If any term or provision of this Agreement is invalid, illegal, void or unenforceable in any jurisdiction, such invalidity, illegality, voidability or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The Parties further agree to replace such invalid, illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal, void or unenforceable provision.

 

17.10Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date first written above.

 

TRINA SOLAR (U.S.), INC.,  
A Delaware corporation  
     
By: /s/ Steven Zhu  
Name:  Steven Zhu  
Title: President, Director  

 

TRINA SOLAR US MANUFACTURING MODULE 1, LLC,
A Texas limited liability company  
     
By: /s/ Su Wang  
Name:  Su Wang                      
Title: Treasurer  

 

[signature Page To Sales Agency And Aftermarket Services Agreement]

 

 

 

 

Exhibit 10.8

 

IP LICENSE AGREEMENT

 

This IP LICENSE AGREEMENT (the “Agreement”) is entered into as of December 23, 2024 (the “Effective Date”), by and between Trina Solar Co., Ltd. (“TCZ” or “Licensor”) and FREYR Battery, Inc. (“FREYR” or “Licensee”). Licensor and Licensee are each a “Party” and, collectively, the “Parties”.

 

RECITALS

 

WHEREAS, Trina Solar (Schweiz) AG, an entity organized under the Laws of Switzerland (“TSW”), an indirect subsidiary of TCZ, and FREYR, a Delaware corporation and, following Closing (as defined below), an Affiliate of Trina Solar US Manufacturing Module 1, LLC (“TUM 1”), entered into that certain Transaction Agreement dated November 6, 2024 (the “Transaction Agreement”), and, as a result of the transactions contemplated in the Transaction Agreement, TUM 1 will no longer be an indirect subsidiary of TSW and will become an indirect subsidiary of FREYR upon the closing of the transactions contemplated in the Transaction Agreement (the “Closing”);

 

WHEREAS, in connection with the Transaction Agreement, the Parties have agreed that Licensee and its Affiliates and Sublicensees will have rights to certain Intellectual Property and Materials in accordance with and subject to the terms set forth herein.

 

NOW, THEREFORE, in consideration of the terms and conditions set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed by both Parties, and intending to be legally bound hereby, the Parties agree as follows:

 

ARTICLE I
OVERVIEW; DEFINITIONS AND INTERPRETATION

 

Section 1.1 Overview. The Parties acknowledge that they are entering into this Agreement simultaneously with Amendment No. 1 to that certain Intellectual Property License Agreement dated July 16, 2024 by and between Licensor and TUM 1 (as amended, the “Amended IP License Agreement”) so that, immediately after the Effective Date, TUM 1 (which as of the Effective Date will be an indirect, wholly owned subsidiary of Licensee) has rights to Licensed IP directly under the Amended IP License Agreement and through a Sublicense Agreement by Licensee to TUM 1 under this Agreement (the “IP Sublicense Agreement”). At any time after the first anniversary of the Effective Date, either Party to this Agreement may notify the other Party that it wishes to amend and restate the Amended IP License Agreement to reflect the terms herein and to terminate this Agreement, and if agreed upon in writing by the Parties and TUM 1, the Parties will negotiate in good faith, on behalf of themselves and their Affiliates, to prepare and finalize such amended and restated agreement, provided that neither Party, TUM 1, and no other Affiliate of any Party is obligated to enter into any amended and restated agreement (and, in connection therewith, terminate this Agreement) unless agreed in writing by the Parties and TUM 1.

 

Section 1.2 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

 

(a) “Affiliate” of any Person means another Person that directly or indirectly through one or more intermediaries Controls, is Controlled by or is under common Control with, such first Person, where “Control” of an individual or entity means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such individual or entity, whether through the ownership of voting securities, by contract, or otherwise. “Controlled” and “under common Control with” have correlative meanings.

 

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(b) Agreement” has the meaning set forth in the Preamble to this Agreement.

 

(c) Approved Facilities” means (i) the Solar Module Manufacturing Facility; and (ii) any other Manufacturing facility owned or controlled by TUM 1 or any of the Approved Subsidiaries that is commissioned for the Manufacture of Solar Modules or Solar Cells and that is approved by Licensor in writing, such approval not to be unreasonably withheld, delayed or conditioned.

 

(d) Approved Subsidiary” means (i) any direct subsidiary wholly owned by TUM 1 that is established for the purpose of Manufacturing Licensed Products, (ii) TUM 2 or any of its direct subsidiaries established for the purpose of Manufacturing Solar Cells to be used in Licensed Products, and (iii) any Affiliate of TUM 1 that is established for the purpose of Manufacturing Solar Cells to be used in Licensed Products and that, in the case of (iii), is approved by Licensor in writing, such approval not to be unreasonably withheld, delayed or conditioned.

 

(e) “Beneficial owner” has the meaning set forth in Section 10.1.

 

(f) “Business Day” means each day that is not (i) a Saturday, Sunday, or (ii) other day on which banking institutions located in Shanghai, People’s Republic of China or New York, New York, are obligated by Law or executive order to close.

 

(g) Challenge” means, with respect to any Licensed Patent, to contest the validity or enforceability of any such Licensed Patents, in whole or in part, in any court, arbitration proceeding or other tribunal or before any other Governmental Authority, including the United States Patent and Trademark Office and the United States International Trade Commission.

 

(h) “Change of Control” has the meaning set forth in Section 10.1.

 

(i) “Closing” has the meaning set forth in the Recitals.

 

(j) Closing Date” means the date on which the Closing occurs in accordance with the Transaction Agreement.

 

(k) “Commercial Agreements” means (i) this Agreement; (ii) the Solar Cells Sales Agreement; (iii) the Polysilicon Sales Agreement; (iv) the Module Operational Support Agreement; (v) the Trademark License Agreement; (vi) the Amended IP License Agreement; (vii) the IP Sublicense Agreement; (viii) the Sales Agency Agreement; (ix) the TUS Offtake Agreement; (x) the Solar Cell Operational Support Agreement; and (xi) the Solar Wafer Sales Agreement.

 

(l) Confidential Information” has the meaning set forth in Section 7.1(a).

 

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(m) Control” or “Controlled” means, with respect to any Intellectual Property, such Person has been granted a license or other rights in, to and under such Intellectual Property (other than pursuant to a license or other rights granted pursuant to this Agreement).

 

(n) Cover” means, with respect to any Patent and the subject matter thereof, but for a license granted under a claim of such Patent, the making, having made, use, sale, offer for sale, or importation of the subject matter at issue would infringe such claim.

 

(o) “Credit Agreement” means that certain Credit Agreement, dated July 16, 2024, by and among TUM 1, as borrower, HSBC Bank USA, N.A., as administrative agent, HSBC Bank USA, N.A., as collateral agent, and the other lenders from time to time party thereto, as amended from time to time.

 

(p) Distribution and/or Sale” and “Distribute and/or Sell” mean selling, offering for sale, distributing for sale, marketing, promoting, advertising, importing, using and otherwise commercializing.

 

(q) Effective Date” has the meaning set forth in the Preamble to this Agreement.

 

(r) “Embodiment” means any and all Licensed Materials and other Materials (i) describing all or any part of the Licensed IP or any information related thereto or (ii) in which all of any part of the Licensed IP or such information is set forth, embodied, recorded or stored.

 

(s) “Exploit” or “Exploitation” means to make, have made, import, use, including to research, develop, commercialize, Manufacture, have Manufactured, hold or keep (whether for disposal or otherwise), have used, transport, Distribute and/or Sell, promote, market or have sold or otherwise dispose of.

 

(t) Extension Term” has the meaning set forth in Section 8.1.

 

(u) Field” means the Manufacture of solar cells and solar modules from components thereof, including solar cells, and the Distribution and/or Sale of such solar modules and cells.

 

(v) FREYR” has the meaning set forth in the Preamble.

 

(w) Governmental Authority” means any nation or government; any state, municipality or other political subdivision thereof; and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, taxing, regulatory, administrative or other similar functions of, or pertaining to, governance; and any executive official thereof.

 

(x) Improvement IP” means any and all Patents filed by or on behalf of Licensor or any of its Affiliates, or Know-How or Materials, invented, generated or created during the Term that is an improvement to any invention disclosed in any Licensed Patent (including those listed on Schedule A of the Agreement) or any Licensed Know-How or Licensed Materials.

 

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(y) “Indemnifying Party” has the meaning set forth in Section 6.1.

 

(z) Indemnified Party” has the meaning set forth in Section 6.1.

 

(aa) “Intellectual Property” means any and all rights (created or arising in any jurisdiction anywhere in the world, whether statutory, common law, or otherwise) to the extent arising from or related to intellectual property, and other similar proprietary rights, including in or to (i) Patents, (ii)  copyrightable works, copyrights (including, but not limited to, in product label or packaging artwork or templates), rights in works of authorship (whether copyrightable or not), moral rights, mask work rights, rights in data and database rights and design rights, in each case, whether or not registered, and registrations and applications for registration thereof, (iii) Software, (iv) Know-How, and (v) all registrations and applications for registration of any of the foregoing clauses (i) through (v). For the avoidance of doubt, Intellectual Property excludes Trademarks.

 

(bb) “Initial Term” has the meaning set forth in Section 8.1.

 

(cc) “IP Sublicense Agreement” has the meaning set forth in Section 1.1.

 

(dd) “Know-How” means all trade secrets (including those trade secrets defined in the Defend Trade Secrets Act, Uniform Trade Secrets Act or under corresponding foreign statutory and common Law) and other confidential or proprietary information, know-how and technical data, including any that comprise financial, business, scientific, technical, economic, or engineering information and instructions, including any confidential or proprietary raw materials, material lists, raw material specifications, methods, techniques, processes and inventions (whether or not patentable), and all Intellectual Property therein and with respect thereto, other than Patents.

 

(ee) “Knowledge” and its cognates mean, with regard to each of the Parties, the actual knowledge after reasonable inquiry of the individuals listed on Schedule C.

 

(ff) “Law” means any U.S. or non-U.S. federal, state, provincial, local or other constitution, law, statute, ordinance, rule, directive, regulation, published administrative position, policy or principle of common law issued, enacted, adopted, promulgated, implemented or otherwise put into legal effect by or under the authority of any Governmental Authority and any judgments, decisions, orders and awards made in respect of the foregoing, including for the avoidance of doubt any stock exchange rules.

 

(gg) “Licensed IP means the Licensed Patents, Licensed Know-How, Licensed Materials and Licensed Software.

 

(hh) “Licensed Know-How” means any and all Know-How owned by, in the possession of or otherwise in the Control of Licensor or any of its Affiliates as of the Effective Date or any time during the Term that relates to the Field (including any Know-How that constitutes Improvement IP) and that is (i) incorporated into the Licensed Products or the Licensed Materials or (b) necessary or useful for the Manufacture, Distribution and/or Sale of Licensed Products.

 

(ii) Licensed Materials” means all Materials that relate to the Field or to the Licensed Products and that are provided by Licensor or its Affiliates to Licensee, any of its Affiliates or any Sublicensees in the performance of their respective obligations or exercise of their rights in connection with any of the Commercial Agreements, together with all Intellectual Property therein and with respect thereto.

 

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(jj) Licensed Software” means all Software owned by Licensor or its Affiliates that is used in or necessary for the operation of the Solar Module Manufacturing Facility as of the Effective Date and any modifications, improvements or derivative works developed by Licensor or its Affiliates after the Effective Date for such Software (including for the avoidance of doubt, all new versions, upgrades and bug fixes).

 

(kk) “Licensed Patents” means any and all Patents owned or otherwise Controlled by Licensor or any of its Affiliates as of the Effective Date or any time during the Term that (i) Cover the Manufacture, Distribution and/or Sale of any Licensed Products in the Territory, (ii) are necessary or useful for Licensee to Exploit the Licensed Products, or otherwise exercise the rights granted under the license hereunder in the Territory or (iii) comprise or Cover any Improvement IP in the Territory. For clarity, the Licensed Patents shall include, without limitation, the Patents listed on Schedule A and any Patents within the Improvement IP added to Schedule A pursuant to Section 3.2. Licensed Patents exclude any Patents exclusively Covering solar storage technologies other than PERC Technology or TOPCon Technology; provided that if any such Patents Cover PERC Technology or TOPCon Technology as well as other solar storage technologies, such Patents will be included in the Licensed Patents but solely for purposes of the licenses and other rights granted hereunder and for no other purpose.

 

(ll) “Licensed Products” means any Solar Modules, Solar Cells and components thereof.

 

(mm) “Licensee” has the meaning set forth in the Preamble.

 

(nn) “Licensor” has the meaning set forth in the Preamble.

 

(oo) “Manufacture” and “Manufacturing” means any and all activities related to the production, manufacture, making, processing, packaging, labeling, testing, shipping, storing, or release of a product or any component thereof, including process development, process qualification and validation, scale-up, test method development, quality assurance and quality control with respect to the foregoing.

 

(pp) “Materials” means specifications, instructions, formulas, spreadsheets, data, drafts, papers, designs, schematics, diagrams, models, prototypes, computer-stored data, manuscripts, object code and other items. For purposes of this Agreement, Materials excludes Software other than object code of the Licensed Software.

 

(qq) “Module Operational Support Agreement” means the Module Operational Support Agreement, to be executed on or before the Closing Date, between TUS, as service provider, and FREYR, as manufacturer, amending, restating, replacing and renaming the Agreement for the Provision of Services between TCZ and TUM 1 dated July 16, 2024.

 

(rr) “Party” has the meaning set forth in the Preamble to this Agreement.

 

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(ss) “Patent Challenge Termination Event” has the meaning set forth in Section 8.3.

 

(tt) “Patents” means patents, patent applications (including patents issued thereon), invention disclosures, statutory invention registrations, patents of importation, certificates of addition, design patents and utility models, in each case of the foregoing, including reissues, divisionals, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof.

 

(uu) “PERC Technology” means the solar cell technology called Passivated Emitter and Rear Contact Solar Cell, including any and all updates, upgrades, modifications and improvements thereto during the Term.

 

(vv) “Person” means any individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).

 

(ww) “Polysilicon Sales Agreement” means the Amended and Restated Sales Agreement (Polysilicon), to be executed on or before the Closing Date, between TVNW, as buyer, and TUM 1, as seller, amending and restating the Intercompany Sales Agreement between TUM 1 and TVNW dated July 16, 2024.

 

(xx) “Sales Agency Agreement” means the Sales Agency and Aftermarket Services Agreement, to be executed on or before the Closing Date, between TUS, as sales agent, and TUM 1, as manufacturer, amending, restating and renaming the Marketing and Service Agreement between TUS and TUM 1 dated July 16, 2024.

 

(yy) “Software” means all computer software and programs (whether in source code, object code or other form), firmware, software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials to the extent related to any of the foregoing.

 

(zz) “Solar Cell Operational Support Agreement” means the Solar Cell Operational Support Agreement, to be executed after the Closing Date, between TUS, as service provider, and FREYR, as manufacturer.

 

(aaa) “Solar Cells” means the solar photovoltaic cells compatible with the Solar Modules Manufactured, or to be Manufactured, by or on behalf of TUM 2 or an Approved Subsidiary at Approved Facilities.

 

(bbb) “Solar Cells Sales Agreement” means the Amended and Restated Sales Agreement (Solar Cells), to be executed on or before the Closing Date, between TED, as seller, and TUM 1, as buyer, amending and restating the Intercompany Sales Agreement between TED and TUM 1 dated July 16, 2024.

 

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(ccc) “Solar Energy Products” means solar cells, solar ingots, solar photovoltaic energy generating modules, and solar silicon wafers and polysilicon products produced for use in the manufacture of solar silicon wafers.

 

(ddd) “Solar Module Manufacturing Facility” means the Manufacturing facility owned by TUM 1 located at 1200 North Sunrise Road, Wilmer, Texas.

 

(eee) “Solar Modules” means solar photovoltaic energy generating modules utilizing PERC Technology or TOPCon Technology that are Manufactured, or to be Manufactured, by or on behalf of TUM 1 or an Approved Subsidiary at Approved Facilities.

 

(fff) “Solar Wafer Sales Agreement” means the Sales Agreement (Solar Wafers) to be executed after the Closing Date between TED, as supplier, and TUM 2, as buyer.

 

(ggg) “TOPCon Technology” means the solar cell technology called Tunnel Oxide Passivated Contact Solar Cell, including any and all updates, upgrades, modifications and improvements thereto during the Term.

 

(hhh) “Sublicensee” has the meaning set forth in Section 2.2.

 

(iii) Tax” means any income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added, transfer, franchise, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent, including employer and employees’ contributions), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible or intangible), environmental or windfall profit tax, escheat or unclaimed property, custom duty, tariff, or other tax, governmental fee or other like assessment or charge in the nature of a tax, together with any interest or any penalty or addition to tax or additional amount (whether disputed or not) imposed by any Governmental Authority responsible for the imposition of any such tax (domestic or foreign).

 

(jjj) “TCZ” has the meaning set forth in the Preamble.

 

(kkk) “TED” means Trina Solar Energy Development Pte. Ltd, a company organized under the Laws of the Republic of Singapore.

 

(lll) “Term” has the meaning set forth in Section 8.1.

 

(mmm) “Territory” means the United States of America.

 

(nnn) “Third Party” means any Person other than Licensor, Licensee, and their respective Affiliates.

 

(ooo) “Third Party Infringement” means (i) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation or other violation of any Licensed IP or (ii) any Third Party allegations that challenge the ownership, use, validity or enforceability of any Licensed IP.

 

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(ppp) “Trademark License Agreement” means the Amended and Restated Trademark License Agreement, to be executed on or before the Closing Date, between TUS and TUM 1, amending, restating, replacing and renaming the Trademark License Agreement between TCZ and TUM 1 dated July 16, 2024.

 

(qqq) “Trademarks” means any trademarks, certification marks, service marks, trade names, domain names, favicons, social media addresses, service names, trade dress and logos, and other source indicators, including all goodwill associated therewith, in each case whether or not registered, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing.

 

(rrr) “Transaction Agreement” has the meaning set forth in the Recitals to this Agreement.

 

(sss) “Trina Competitor” means any Person that is primarily in the business of procuring, Manufacturing or Distributing and/or Selling Solar Energy Products in the Territory. Trina Competitors include but are not limited to: JA Solar Holdings Co., Ltd, Canadian Solar Inc., BYD Company Limited, Boviet Technology Co. Ltd., Run Energy (Holdings) Pty Limited, JinkoSolar, Waaree Energies Limited, Risen Energy Co., Ltd, Talesun Solar Co., Ltd, Hanwha Group (Qcells division), VSUN LONGi Green Energy Technology Co. Ltd, New East Solar Energy, ZNSHINE PV-Tech Co., LTD, SunPower Corporation, LG Electronics Inc. (solar panels division), Phono Solar Technology Co., Ltd., Heliene Inc., Silfab Solar Inc., Tesla Energy Operations Inc., First Solar Inc., Maxeon Solar Technologies, Ltd., and Astronergy Solar Ltd.

 

(ttt) “TSW” has the meaning set forth in the Recitals.

 

(uuu) “TUM 1” has the meaning set forth in the Recitals.

 

(vvv) “TUM 2” means Trina Solar US Manufacturing Cell 1, LLC, a limited liability company organized under the laws of Oklahoma.

 

(www) “TUS” means Trina Solar (U.S.), Inc., a corporation organized under the Laws of Delaware.

 

(xxx) TUS Offtake Agreement” means the Supply Contract, to be executed on or before the Closing Date, between TUM 1, as supplier, and TUS, as purchaser, amending and restating the Supply Agreement between TUM 1 and TUS dated July 16, 2024.

 

(yyy) “TVNW” means Trina Solar (Viet Nam) Wafer Company Limited, a company organized under the Laws of Vietnam.

 

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ARTICLE II
GRANTS OF RIGHTS

 

Section 2.1 Licenses to Licensee. Subject to the terms and conditions of this Agreement, Licensor, on behalf of itself and its Affiliates, hereby grants, and Licensor shall cause its Affiliates to grant, to Licensee, (a) a royalty-free (subject to the last sentence of Section 2.1), fully paid-up, sublicensable (to the extent permitted in Section 2.2), transferable (to the extent permitted in Section 10.1), non-exclusive license during the Term in, to and under the Licensed IP to Manufacture and have Manufactured Licensed Products at Approved Facilities in the Territory, to Distribute and/or Sell (including import, use and commercialize) the Licensed Products in the Territory, to operate the Approved Facilities and otherwise to receive any services provided by Licensor or its Affiliates under the Commercial Agreements, and to copy, display and use the Licensed Materials in the Territory for the purpose of Manufacturing and Distributing and/or Selling Licensed Products throughout the Territory, to operate the Approved Facilities and otherwise to receive any services provided by Licensor or its Affiliates under the Commercial Agreements and (b) a royalty-free (subject to the last sentence of Section 2.1), fully paid-up, sublicensable (to the extent permitted in Section 2.2), transferable (to the extent permitted in Section 10.1), non-exclusive license during the Term to (i) access, host, install, run, execute and use the Licensed Software, in object code only, (ii) generate print, copy, download and store all data, information, and content resulting from use of the Licensed Software, and (iii) make and use a reasonable number of copies of the Licensed Software as may be necessary or useful to Manufacture and have Manufactured Licensed Products in the Territory, to Distribute and/or Sell (including importing, using and commercializing) the Licensed Products in the Territory, to operate the Approved Facilities, and otherwise to receive any services provided by Licensor or its Affiliates under the Commercial Agreements. For clarity, subject to the terms and conditions of this Agreement, the foregoing license shall include the right as applicable, to use, practice, copy, perform, render, develop, improve, display, distribute, modify and, other than with respect to Licensed Software, make derivative works of the Licensed IP and any tangible embodiments thereof, in each case within the scope of the foregoing license. Licensor and Licensee acknowledge and agree that in the event that the Amended IP License Agreement is terminated for any reason and this Agreement continues in force, then the license set forth in this Section 2.1 shall be royalty-bearing during the period beginning on the effective date of termination of the Amended IP License Agreement and continuing for the remainder of the Term in accordance with the royalties set forth on Schedule D.

 

Section 2.2 Sublicenses.

 

(a) Direct Sublicenses. Licensee shall only have the right to sublicense the license and rights granted to Licensee under this Agreement to TUM 1, provided that, TUM 1 is and remains a direct or indirect, wholly owned subsidiary of Licensee. As of the Effective Date, Licensee shall grant a sublicense to TUM 1 of all of the rights granted to Licensee hereunder pursuant to the IP Sublicense Agreement. For clarity, in the event that the IP Sublicense Agreement is terminated, this Agreement shall terminate in accordance with the terms hereof.

 

(b) Further Sublicenses. TUM 1 shall be permitted to sublicense the sublicenses and rights granted by Licensee to TUM 1 (as described in the foregoing Section 2.2(a)) in accordance with the terms hereof (i) to TUM 2, provided that, TUM 2 is and remains an direct or indirect, wholly owned subsidiary of Licensee, as necessary or useful to permit the Manufacture of Solar Cells at, or Distribution and/or Sale thereof from, an Approved Facility; (ii) to any or all Approved Subsidiaries as necessary to permit the Manufacture of Licensed Products at, or Distribution and/or Sale thereof from, Approved Facilities; and (iii) to other Third Parties and Affiliates of TUM 1 with Licensor’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed (the foregoing (i)-(iii)), together with TUM 1, “Sublicensees”).

 

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(c) Obligations with respect to Sublicensees. The sublicenses granted to any Third Parties (whether pursuant to this Agreement or the IP Sublicense Agreement) shall be pursuant to a written agreement that (i) is consistent with the terms and conditions of the Agreement; (ii) terminates automatically upon the termination of this Agreement and (iii) names Licensor as an intended third-party beneficiary of the sublicense agreement. Licensee will provide unredacted copies of all sublicense agreements to Licensor upon request by Licensor; provided, however, that Licensee may redact confidential portions of each such agreement (or amendments thereto) to the extent such portions do not relate to the Licensed IP. 

 

(d) For clarity, granting a sublicense shall not relieve Licensee of any obligations hereunder and Licensee shall cause each of its Sublicensees to comply, and shall remain responsible for its Sublicensees’ compliance, with the terms hereof applicable to Licensee.

 

Section 2.3 Exclusive Solar Modules Manufacturer.

 

(a) TUM 1 and its Approved Subsidiaries shall be the exclusive manufacturer in the United States of Solar Modules using the Intellectual Property of Licensor and its Affiliates during the first two (2) years after the Closing Date (the “Initial Exclusivity Term”).

 

(b) Beginning on the second anniversary of the Effective Date, the exclusivity set forth in Section 2.3(a) will automatically renew for successive one (1) year periods for the remainder of the Term (each such one-year period together with the Initial Exclusivity Term, the “Exclusivity Term”); provided that Licensor may terminate the exclusivity by providing written notice to Licensee (i) at least sixty (60) days prior to expiration of the Initial Exclusivity Term, and (ii) thereafter, for the remainder of the Exclusivity Term, at least sixty (60) days prior to any anniversary of the Effective Date, which termination shall be effective under (i) and (ii) upon the relevant anniversary of the Effective Date.

 

(c) The exclusivity set forth in this Section 2.3 shall not apply (i) to any Solar Modules which cannot be produced at the Approved Facility without a material modification to any such Approved Facility and (ii) to any volumes of Solar Modules in excess of five (5) gigawatts per year or any higher aggregate maximum annual capacity of all Approved Facilities.

 

Section 2.4 Tech Transfer. Within sixty (60) days of the Effective Date (the “Initial Technology Transfer Date”), Licensor shall use its best efforts to deliver the Licensed Materials and to disclose the Licensed Know-How that are reasonably necessary or useful for the Manufacture and Distribution and/or Sale of Licensed Products and the operation of the Solar Module Manufacturing Facility as of the Initial Technology Transfer Date (the “Initial Technology Transfer”). Following the Initial Technology Transfer Date, the Parties agree that, on a quarterly basis, or more frequently if agreed upon by the Parties, Licensor’s and Licensee’s technical personnel will meet and confer to determine whether the provision of additional Licensed Materials or the disclosure of additional Know-How are reasonably necessary or useful for the Manufacture and Distribution and/or Sale of Licensed Productions or for the operation of the Solar Module Manufacturing Facility or any other Approved Facility, if applicable. Upon Licensee’s reasonable request for such additional Licensed Materials, Licensor agrees to use its best efforts to deliver the additional Licensed Materials and to disclose additional Licensed Know-How (each a “Subsequent Technology Transfer” and collectively with the Initial Technology Transfer, the “Technology Transfers”). With each Technology Transfer, if requested by Licensee, Licensor shall make available (in person or remotely) technical personnel with experience relating to the Licensed Materials and Licensed Know-How. For the avoidance of doubt, nothing herein shall require Licensor to create or develop new materials for Licensee.

 

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Section 2.5 Reservation of Rights. Except as expressly provided in the Transaction Agreement or any other Commercial Agreement, each Party reserves its and its Affiliates’ rights in and to all Intellectual Property that is not expressly licensed or otherwise granted hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon either Party, its Affiliates, or its sublicensees by implication, estoppel, or otherwise as to any of the other Party’s Intellectual Property that is not expressly licensed or otherwise granted hereunder and in no event shall the Intellectual Property licensed hereunder include any Trademarks.

 

ARTICLE III
OWNERSHIP AND IMPROVEMENT PATENTS

 

Section 3.1 Ownership. As between the Parties and their respective Affiliates, Licensee acknowledges and agrees that Licensor and its Affiliates own all right, title and interest in and to the Licensed IP. Any modification, improvement or derivative work of the Licensed IP (including Improvement IP) that is created or developed by Licensee shall be owned by Licensor. Licensee hereby assigns, transfers, and conveys (and agrees to assign, transfer, and convey) to Licensor all of its right, title and interest in and to such modifications, improvements and derivative works (including Improvement IP); provided that all such modifications, improvements and derivative works (including Improvement IP) shall then automatically be included in the license set forth in Section 2.1.

 

Section 3.2 Improvement Patents. Licensor will update Schedule A as soon as reasonably practicable from time to time to include any Patents within the Improvement IP; provided that, regardless of Licensor’s failure to update such Schedule, such Patents shall be deemed to be included in the definition of Improvement IP and Licensed IP.

 

ARTICLE IV
PROSECUTION, MAINTENANCE AND ENFORCEMENT

 

Section 4.1 Responsibility and Cooperation. As between the Parties, Licensor shall have sole and exclusive responsibility (but not the obligation) for filing, prosecuting and maintaining all Patents within the Licensed IP. Licensor shall be solely responsible for all costs and expenses incurred in connection with such filing, prosecution and maintenance.

 

Section 4.2 Enforcement and Defense.

 

(a) Right to Enforce and Defend. Subject to the remainder of this Section 4.2, as between the Parties, Licensor shall have the sole and exclusive right, but not the obligation, at its own cost and expense, to control enforcement and defense against any Third Party Infringement of the Licensed IP under which Licensor is granting a license to Licensee hereunder (including by bringing any proceeding or action or entering into settlement discussions).

 

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(b) Cooperation. If Licensor brings any proceeding or action, or enters into settlement discussions, with respect to any Third Party Infringement in accordance with Section 4.2(a), Licensee shall provide reasonable assistance in connection therewith, at Licensor reasonable request, and Licensee shall be reimbursed for its reasonable out-of-pocket costs and expenses incurred in connection therewith.

 

(c) Settlements. Licensor shall notify Licensee in writing (email is sufficient) at least ten (10) Business Days prior to entering into any agreement to settle any Third Party Infringement with respect to the Licensed IP, provided that Licensor shall not enter into any such settlement agreement on terms that would (i) adversely affect the validity, enforceability or scope, or admit non-infringement, of any of the Licensed IP, (ii) give rise to any liability of Licensee, its Affiliates or any Sublicensees, or (iii) restrict, limit, encumber or otherwise impair Licensee’ or any of its Affiliates’ or Sublicensees’ rights in any Licensed IP or Licensee’s or any of its Affiliates’ or Sublicensees’ rights under this Agreement. Licensor will consider in good faith any suggestions Licensee may propose with regard to any agreement settling a claim of Third Party Infringement.

 

(d) Recoveries. Any and all amounts recovered by Licensor in any proceeding or action regarding a Third Party Infringement or settlement with respect thereto shall, unless otherwise agreed (including in an agreement in connection with obtaining consent to settlement), be first used to reimburse the Parties’, their Affiliates’ and the Sublicensees’ costs and expenses in connection with therewith, with the remainder being allocated as follows: (i) Licensee receiving the percentage of such amount corresponding to its, its Affiliates’ and the Sublicensees’ quantifiable and direct damages to the extent caused by the Third Party Infringement and (ii) the remainder being retained by Licensor. To the extent the judgment or settlement does not specify what portion of the amount paid reflects Licensee’s damages, the Parties will negotiate in good faith to determine the allocation, and if the Parties are unable to resolve the disagreement, they shall refer the dispute to the Operational Committee established under Section 5.3 of the Module Operational Support Agreement. The Operational Committee or Executives (as defined in the Module Operational Support Agreement) shall resolve such dispute in accordance with Section 5.3(vi) of the Module Operational Support Agreement. If, after an additional thirty (30) days from the meeting of such Executives, the Parties are still unable to resolve a deadlock, either Party may seek resolution in accordance with Section ARTICLE IX herein.

 

ARTICLE V
representations, warranties AND COVENANTS

 

Section 5.1 Mutual Representations and Warranties. Each of Licensor and Licensee hereby represents and warrants to the other Party as of the Effective Date that:

 

(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization;

 

(b) the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite action under the provisions of its charter, bylaws and other organizational documents, and does not require any action or approval by any of its shareholders or other holders of its voting securities or voting interests;

 

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(c) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and

 

(d) this Agreement has been duly executed and is a legal, valid and binding obligation on each Party, enforceable against such Party in accordance with its terms.

 

Section 5.2 Representations of Licensor. Licensor hereby represents and warrants to Licensee as of the Effective Date that:

 

(a) Licensor (or one or more of its Affiliates) (i) is the sole and exclusive owner of the Licensed Patents, all of which is free and clear of any claims, liens, charges or encumbrances and (ii) owns or otherwise has a valid right to use, and to permit Licensee and the Sublicensees to use, in accordance with the licenses and sublicenses granted and contemplated to be granted in accordance with the terms hereof, all other Licensed IP;

 

(b) Licensor has the full right, power and authority to grant all of the right, title and interest in the licenses and other rights granted or to be granted to Licensee and the Sublicensees in connection with this Agreement;

 

(c) immediately after the Effective Date, Licensee will have the right to grant sublicenses and TUM 1 shall have the right to grant further sublicenses as permitted under this Agreement;

 

(d) as of the Effective Date (i) Schedule A sets forth a true and complete list of all Licensed Patents as of the Effective Date, and each such Patent is, to the Knowledge of Licensor, in full force and effect, valid and enforceable;

 

(e) Schedule B sets forth a true and complete list of all Licensed Products developed and commercialized by Licensor or its Affiliates on or prior to the Effective Date;

 

(f) as of the Effective Date, Licensor or its Affiliates have timely paid all filing and renewal fees payable with respect to the Licensed Patents at all times while such Patents were owned or under the Control of Licensor or its Affiliates;

 

(g) except as disclosed in writing by Licensor to Licensee prior to the Effective Date, as of the Effective Date, no Third Party: (i) to the Knowledge of Licensor, is infringing any Licensed Patent or (ii) has filed any challenge with any Governmental Authority or threatened in writing to challenge the scope, validity or enforceability of any Licensed Patent (including, by way of example, through the institution or written threat of institution of interference, nullity or similar invalidity proceedings before the United States Patent and Trademark Office or any analogous foreign governmental authority);

 

(h) except as disclosed in writing by Licensor to Licensee prior to the Effective Date, as of the Effective Date, there is no claim, demand, suit, proceeding, arbitration, inquiry, investigation or other legal action of any nature, civil, criminal, regulatory or otherwise, pending or threatened in writing (including with respect to any infringement, misappropriation or other violation of any Third Party Intellectual Property) against Licensor or any of its Affiliates in connection with the Licensed IP or any Licensed Product;

 

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(i) Licensor has complied in all material respects with all applicable Laws applicable to the filing, prosecution and maintenance of the Licensed Patents, including any disclosure requirements;

 

(j) Licensor has independently developed all Licensed Know-How or otherwise has a valid right to use, and to permit Licensee and the Sublicensees to use, the Licensed Know-How for all permitted purposes in connection with this Agreement;

 

(k) Each named inventors’ entire right, title and interest in and to all applicable Licensed Patents listed on Exhibit A have been assigned to Licensor through valid and enforceable written agreements from such inventor, and to the Knowledge of Licensor, no current or former employee, consultant or advisor owns any portion of any other Licensed IP;

 

(l) Licensor and its Affiliates take reasonable measures to protect the confidentiality of trade secrets within the Licensed Know-How, including requiring all Persons having access thereto to execute written non-disclosure agreements, and to the Knowledge of Licensor, there has not been any disclosure of or access to any material trade secret within the Licensed Know-How in a manner that has resulted or is likely to result in the loss of trade secret or other rights in or to such information;

 

(m) no Licensed Patent is subject to any funding agreement with a U.S. Governmental Authority or any of its agencies and, to the Knowledge of Licensor, no Licensed Patent is subject to any funding agreement with any Governmental Authority outside of the United States;

 

(n) neither Licensor nor any of its Affiliates is party to or otherwise subject to any agreement or arrangement which limits the ownership or licensed rights of Licensor or its Affiliates with respect to, or limits the ability of Licensor or its Affiliates to grant a license or sublicense, or provide access or other rights in, to or under, any Intellectual Property or Materials, in each case, that would, but for such agreement or arrangement, be Licensed IP; and

 

(o) no rights granted by or to Licensor or any of its Affiliates to any Third Party conflict with any right or license granted to Licensee or any Sublicensees hereunder.

 

Section 5.3 Disclaimer. OTHER THAN ANY REPRESENTATIONS OR WARRANTIES INCLUDED IN THE TRANSACTION AGREEMENT OR ANY COMMERCIAL AGREEMENT, THE FOREGOING REPRESENTATIONS AND WARRANTIES OF EACH PARTY ARE IN LIEU OF ANY OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY EXCLUDED AND DISCLAIMED.

 

Section 5.4 Restricted Actions. During the Term, Licensor shall not, and shall ensure that its Affiliates do not, take any of the actions set forth in this Section 5.4 (each, a “Restricted Action”), except in compliance with Section 5.5:

 

(a) (i) sell, assign or otherwise transfer to any Person (other than to Licensee or the Sublicensees pursuant to the terms of this Agreement) any Licensed IP (or enter into any binding agreement to do any of the foregoing) or (ii) incur or permit to exist, with respect to any Licensed IP, any lien, encumbrance, charge, security interest, mortgage, liability, assignment, grant of license or other obligation that is a material limitation on or would materially limit the rights granted to Licensee or the Sublicensees in connection with, or otherwise be inconsistent with, this Agreement;

 

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(b) take any action or fail to take any action that diminishes the rights under the Licensed IP granted to Licensee or the Sublicensees in connection with this Agreement;

 

(c) enter into any agreement or other arrangement with any Third Party that adversely affects (i) the rights granted to Licensee or the Sublicensees hereunder or (ii) Licensor’s or its Affiliates’ ability to fully perform its obligations hereunder; and

 

(d) enter into or otherwise allow itself or its Affiliates to be subject to any agreement or arrangement which limits the licensed rights of Licensee or the Sublicensees with respect to, or limits the ability of Licensee or the Sublicensees to grant a license or sublicense or provide access or other rights in, to or under any Intellectual Property or Materials, in each case, that would, but for such agreement or arrangement, be included in the Licensed IP or Licensed Materials.

 

Section 5.5 Notice; Further Actions. At least ten (10) Business Days prior to undertaking any Restricted Action, Licensor shall notify Licensee in writing, describing in reasonable detail the nature of the Restricted Action.

 

(a) If the Restricted Action involves the abandonment of one or more Licensed Patents, Licensor’s notice shall identify the Licensed Patents in question. Licensee may, at its option, elect to assume the Licensed Patents; if Licensee so elects, Licensor hereby assigns and shall cause its Affiliates to assign, such Patent(s) to Licensee. In furtherance thereof, the Parties will prepare written agreements that cause the transfer and assignment of such Patents; provided that (i) Licensee shall be responsible for all costs and expenses required to transfer such Patents, (ii) Licensor will give no representations or warranties with regard to such transferred Patents and (iii) after the transfer of any such transferred Patents, the transferred Patents will cease to be a Licensed Patent, and Licensee will be responsible for all costs and expenses arising out of the transferred Patents, including all filing and maintenance costs.

 

(b) If the Restricted Action involves the transfer of Licensed Patents to a Third Party, Licensor’s notice shall describe the proposed transaction in reasonable detail, and Licensor will consider in good faith suggestions to ensure that the proposed transfer does not limit the license rights of Licensee, its Affiliates or any Sublicensees; provided that, unless approved by Licensee in writing, in no event shall any such transfer limit the rights of Licensee, its Affiliates or any Sublicensees hereunder or otherwise be inconsistent with the terms hereof.

 

Section 5.6 Licensor Covenants. During the Term, Licensor will use best efforts to ensure that Licensor and its Affiliates retain all right, title and interest in and to the Licensed IP (except to the extent any reduction in the Licensed IP is permitted under this Agreement). Without limiting the foregoing, during the Term, Licensor shall:

 

(a) ensure Licensor has the full right, power and authority to grant all of the right, title and interest in the licenses and other rights granted or to be granted to Licensee and the Sublicensees in connection with this Agreement;

 

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(b) ensure Licensee will have the right to grant sublicenses and TUM 1 shall have the right to grant further sublicenses as permitted under this Agreement;

 

(c) ensure that all Persons acting by or on behalf of Licensor or its Affiliates under this Agreement enter into valid and enforceable agreements with Licensor which require such Persons to assign to Licensor or its Affiliates their entire right, title and interest in and to any and all Licensed IP;

 

(d) obtain from all named inventors of Licensed Patents filed after the Effective Date valid and enforceable written agreements assigning to Licensor each such inventor’s entire right, title and interest in and to all such Licensed Patents; and

 

(e) take reasonable measures, and ensuring that its Affiliates take reasonable measures, to protect the confidentiality of trade secrets within the Licensed Know-How, including requiring all Persons having access thereto to execute written non-disclosure agreements.

 

Section 5.7 Third Party Software. To the extent Licensor, any of its Affiliates or TUM 1 utilizes any Software owned by a Third Party (“Third-Party Software”) in the operation of any Approved Facility and, after the Closing Date the licensee of such Third-Party Software is Licensor or an Affiliate of Licensor then, Licensor shall (a) promptly identify such Third-Party Software to Licensee, (b) to the extent Licensor or its Affiliates have the right to sublicense the rights to the Third-Party Software to TUM 1, Licensor agrees to grant and hereby does grant a sublicense to TUM 1 on the terms permitted under the software license to such Third-Party Software for a reasonable period of time until Licensor or any of its Affiliates (with TUM 1’s assistance) is able to obtain a direct license from the licensor of the Third-Party Software and (b) to the extent Licensor or its Affiliates do not have the right to grant a sublicense to TUM 1 for such Third-Party Software or to assign its license to TUM 1, Licensor shall provide prompt assistance to TUM 1 in the negotiation of a direct license for such Third-Party Software.

 

Section 5.8 Licensee Covenants. During the Term, TUM 1 and its Affiliates shall not (a) Manufacture, Distribute or Sell any Solar Energy Products in the United States of America, Canada or Mexico unless such Solar Energy Products are manufactured under any Licensed Patents or using or incorporating any Licensed Know-How or Licensed Materials, and (b) knowingly Distribute and/or Sell Licensed Products to any Person that Licensee knows intends to (and does) resell such Licensed Products in any country outside of the Territory.

 

Section 5.9 Compliance with Laws. Each of Licensor and Licensee shall comply with all Laws applicable to such Party and all Laws of the United States related to the performance of its obligations under this Agreement.

 

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ARTICLE VI
INDEMNIFICATION; limitations on liability

 

Section 6.1 Mutual Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and such other Party’s Affiliates and Sublicensees (as applicable) and its and their respective directors, officers, agents, successors and assigns (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against any and all loss, liability, or expense (including attorneys’ fees and costs) incurred or suffered by any of the Indemnified Parties as a result of any claim or demand by a Third Party alleging or arising from (a) negligence, gross negligence, willful misconduct or fraud by the Indemnifying Party, any of its Affiliates, or its or its Affiliates’ officers, directors, members, managers or employees, or its or their Sublicensees, agents or subcontractors in the performance of this Agreement or (b) material breach by the Indemnifying Party of this Agreement, in each case (in respect of the foregoing clauses (a) and (b), except to the extent that such loss, liability, or expense (including attorneys’ fees and costs) is subject to indemnification by the other Party pursuant to this Section 6.1).

 

Section 6.2 IP Infringement Claims. Licensor shall indemnify, defend and hold harmless Licensee, its Affiliates and Sublicensees (“Licensee Indemnified Party”) from and against any loss, liability, or expense (including attorneys’ fees and costs) incurred by any such party as a result of a claim or demand by a Third-Party alleging that the Licensed IP, or the use thereof, infringes, violates or misappropriates the Intellectual Property rights of a Third Party, provided that Licensor shall have no such obligation to the extent the claim or demand arises from: (a) the combination of Licensed IP with content, materials, products or services provided by Licensee or Third Parties that is not at the direction of Licensor or in compliance with Licensor’s instructions and Licensor does not and should not reasonably expect such combination to occur, where the use of Licensed IP alone in the absence of such combination would be non-infringing; (b) Licensee’s use of Licensed IP in a manner not permitted or contemplated by this Agreement; (c) Licensee’s failure to use updated versions of Licensed IP if so instructed and provided by Licensor; or (d) Improvement IP solely developed by Licensee or its Affiliates or a Third Party acting on Licensee’s behalf used in violation of the terms hereof. For the avoidance of doubt, “Licensee Indemnified Party” is an “Indemnified Party” under Section 6.3.

 

Section 6.3 Procedures. The Indemnified Party shall be entitled to indemnification hereunder only: (a) if it gives written notice to the Indemnifying Party of any losses or claims, suits, or proceedings by Third Parties which may give rise to a claim for indemnification with reasonable promptness after receiving written notice of such claim (or, in the case of a proceeding, is served in such proceeding) or becoming aware of any such loss; provided, however, that failure to give such notice shall not relieve the Indemnifying Party of its obligation to provide indemnification, except if and to the extent that the Indemnifying Party is actually and materially prejudiced thereby, and (ii) once the Indemnifying Party confirms in writing to the Indemnified Party that it is prepared to assume its indemnification obligations hereunder, the Indemnifying Party has sole control over the defense of the claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to be represented by its own counsel at its own cost in such matters. Notwithstanding the foregoing, (x) no Indemnifying Party shall have the right to assume control over the assertion of any claim, or the commencement of any action, in either case with respect to Taxes of the Indemnified Party, provided that the Indemnified Party shall not settle or resolve any such claim or action if doing so would reasonably be expected to adversely impact the Indemnifying Party, including increasing the Indemnifying Party’s obligations pursuant to this Agreement, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed; and (y) the Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party to make any admission, or to take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. Each Party shall reasonably cooperate with the other Party and its counsel in the course of the defense of any such suit, claim, or demand, such cooperation to include using reasonable efforts to provide or make available documents, information, and witnesses and to mitigate damages.

 

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Section 6.4 IP Infringement Remedies. Without limiting the foregoing Section 6.2, if (a) a Third Party brings a claim that the Licensed IP or the use thereof, or the Manufacture, Distribution and/or Sale of Licensed Products, or operation of any Approved Facility, infringes, violates, or misappropriates the Third Party’s intellectual property rights (an “IP Claim”), (b) Licensor or Licensee believes an IP Claim is reasonably likely, or (c) Licensee’s use of the Licensed IP is enjoined as a result of an IP Claim, Licensor shall, at its option and expense, (i) obtain a license or grant of rights under the rights that have been infringed or are alleged to be infringed, or other functionally equivalent Intellectual Property agreed upon by Licensee, which rights shall be no less favorable to Licensee than the terms hereof, (ii) modify the Licensed IP so it is non-infringing, provided that such modified Licensed IP is functionally equivalent to the unmodified Licensed IP, or (iii) if the foregoing options are not commercially reasonable, or completed within 90 days (or such other time period agreed upon by the Parties in writing), Licensee may terminate this Agreement upon written notice to Licensor. If Licensee declines to terminate the Agreement pursuant to subsection (iii) herein, Licensee agrees to take such actions as may be reasonably requested by Licensor to minimize damages as a result of the IP Claim. The remedies set forth in Section 6.2 and this Section 6.4 are Licensee’s sole and exclusive remedies for any Third Party claim of infringement of intellectual property rights made with respect to the Licensed IP. Licensor shall have no liability and no obligation under this Section 6.4 for any violation, infringement or misappropriation that arises out of or results from the matters described in Section 6.2(a) – (d).

 

Section 6.5 Indemnification Period. Neither Party will have liability to the other Party for indemnification under Section 6.1 and Section 6.2 unless notice of the claim is given by the Indemnified Party within two (2) years of the date that the cause of action become known by the Indemnified Party.

 

Section 6.6 Limitation of Liability.

 

(a) EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN ARTICLE VI AND EXCEPT FOR A PARTY’S BREACH OF ARTICLE VII (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, TRANSACTION LOSSES, OR OPPORTUNITY COSTS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.

 

(b) EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN ARTICLE VI, IN NO EVENT SHALL EITHER PARTY’S TOTAL, AGGREGATE LIABILITY TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE HIGHER OF (i) $50,000,000 AND (ii) THE AMOUNTS PAID OR PAYABLE BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT FOR ROYALTIES (IF APPLICABLE) IN THE EIGHTEEN (18) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM (THE “BASE CAP”).

 

(c) NOTWITHSTANDING ANY CONTRARY TERM IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING EACH PARTY’S OBLIGATIONS IN ARTICLE VI EXCEED THE HIGHER OF (i) $100,000,000 AND (ii) THE AMOUNTS PAID OR PAYABLE BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT FOR ROYALTIES (IF APPLICABLE) IN THE THIRTY SIX (36) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM (THE “INDEMNITY CAP”).

 

(d) FOR AVOIDANCE OF DOUBT, LICENSEE’S OBLIGATION TO PAY ROYALTIES WHEN DUE, WHETHER UNDER THIS AGREEMENT OR UNDER THE AMENDED IP AGREEMENT, IS NOT SUBJECT TO THE BASE CAP OR THE INDEMNITY CAP.

 

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ARTICLE VII
CONFIDENTIALITY

 

Section 7.1 Confidentiality.

 

(a) Definitions; Exclusions. Each Party acknowledges that, in connection with this Agreement, it will gain access to certain non-public, confidential, or proprietary information of the other Party (“Confidential Information”). Confidential Information does not include information that at the time of disclosure is: (i) in the public domain; (ii) known to the Party receiving it; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a Third Party; or (iv) independently developed by the receiving Party without access to the other Party’s Confidential Information.

 

(b) Obligations. Each Party shall maintain the other Party’s Confidential Information in strict confidence, use it only in furtherance of this Agreement, and not disclose it to any other Person, except to its employees, directors, officers, contractors, advisors, equity investors, lenders, and, with respect to TUM 1, its customers, in each case who (i) have a need to know such Confidential Information for such Party to exercise its rights or perform its obligations hereunder and (ii) are bound by written non-disclosure agreements with such Person. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to comply with an order of a court or other governmental authority, or as otherwise necessary to comply with applicable Law, provided that the Party making the disclosure pursuant to the order or in compliance with applicable Law shall first give written notice to the other Party as soon as reasonably practicable, to the extent legally permissible, to permit the other Party to object to the disclosure, and with respect to such order also shall first have made a reasonable effort to obtain a protective order to protect such disclosure.

 

(c) Return of Confidential Information. Upon expiration or termination for any reason of this Agreement, the receiving Party shall immediately (i) return all Confidential Information of the disclosing Party to the disclosing Party, or (ii) destroy it. At the same time, the receiving Party shall provide the disclosing Party with a written certificate signed by an authorized representative of the receiving Party on the return or destruction of all such Confidential Information.

 

ARTICLE VIII
TERM

 

Section 8.1 Term. This Agreement shall become effective as of the Effective Date and shall continue for an initial term of five (5) years (the “Initial Term”), unless terminated earlier as provided herein. Licensee may, in its sole discretion, elect to extend the term of this Agreement for one or more (at Licensee’s discretion) additional five (5) year terms (each such five (5) year period, an “Extension Term”) by providing written notice of such extension to Licensor no less than thirty (30) days prior to the expiration of the then-current term. The “Term” shall mean the Initial Term together with any Extension Terms. If this Agreement is terminated at any point prior to the fifteen (15)-year anniversary of the Effective Date, the Parties acknowledge and agree that the license granted in Section 2.1 shall also terminate. If the Agreement is terminated at any point after the expiration of the last of all of the Licensed Patents, the license granted in Section 2.1 shall survive such termination indefinitely on a royalty-free basis.

 

Section 8.2 Early Termination.

 

(a) Licensor may terminate this Agreement only upon the occurrence of one or more of the following events:

 

(i) Licensee assigns, transfers or conveys, or attempts to assign, transfer or convey the license granted in Section 2.1 or the rights granted hereunder to a Trina Competitor;

 

(ii) TUM 1 or TUM 2 (or to the extent TUM 2 does not own or operate the Approved Facility that Manufactures Solar Cells, the Approved Subsidiary that owns and operates the Approved Facility that Manufactures Solar Cells (if any)) ceases to be a direct or indirect, wholly owned subsidiary of Licensee;

 

(iii) the IP Sublicense Agreement is terminated;

 

(iv) the Amended IP License Agreement is terminated; or

 

(v) a Patent Challenge Termination Event in accordance with Section 8.3.

 

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(b) Either Party may terminate this Agreement if the other Party is in material breach of this Agreement and fails to cure such material breach within ninety (90) days after receiving written notice thereof from the non-breaching Party; provided that, (i) if such material breach is capable of being cured, but cannot be cured within such ninety (90) day period, and the other Party initiates actions to cure such breach within such ninety (90) day period and thereafter diligently pursues such actions, the breaching Party shall have an additional period as is reasonable to cure such breach, not to exceed an aggregate of one hundred eighty (180) days after written notice by the non-breaching Party (unless the non-breaching Party agrees to a longer cure period).

 

Section 8.3 Patent Challenge Termination. If Licensee or any Sublicensees (individually or in association with any Person) Challenges or assists a Third Party in Challenging any Licensed Patent anywhere in the world, then Licensor will provide prompt written notice of such Challenge to Licensee. If Licensee does not withdraw such Challenge (or cause such Challenge to be withdrawn) within forty-five (45) days after receipt of such notice, then Licensor may terminate this Agreement with respect to the Licensed Patent(s) that have been Challenged by providing written notice of such termination to Licensee (a “Patent Challenge Termination Event”); provided that this Section 8.3 will not apply to, and Licensor may not terminate this Agreement with respect to (a) any Challenge that is commenced by a Sublicensee that is not an Affiliate of Licensee (provided that Licensee shall have a period of forty-five (45) days after such notice has been given by Licensor to terminate the applicable sublicense); (b) challenges by an open forum entity or other industry group where Licensee or a Sublicensee is a member (provided that Licensee or its Affiliates or Sublicensees do not direct or control the action of such entity); (c) any affirmative defense or other validity, enforceability, or non-infringement challenge, whether in the same action or in any other agency or forum of competent jurisdiction, advanced by Licensee, any of its Affiliates, Sublicensees in response to any claim or action brought in the first instance by, or on behalf of, Licensor or any Third Party; or (d) the production of documents or the giving testimony in response to any discovery requests or court order in a valid legal process, as required by applicable Law, provided that Licensee has also complied with its obligations under Section 7.1(b).

 

Section 8.4 Survival. The following sections of this Agreement shall survive the termination or expiration of this Agreement: ARTICLE I, ARTICLE III, ARTICLE V, ARTICLE VI, ARTICLE VII, Section 8.4, ARTICLE IX, and ARTICLE X.

 

ARTICLE IX
Governing Law and Jurisdiction; Waiver of Jury Trial; Equitable Remedies

 

Section 9.1 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction). The application of the United Nations Conventions on the International Sale of Goods is explicitly excluded. Any legal suit, action or proceeding arising out of or based upon this Agreement shall properly and exclusively lie in the state and federal courts located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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Section 9.2 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.2.

 

Section 9.3 Equitable Relief. Each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation, and in the event of such a breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including, without limitation, specific performance. The Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

 

ARTICLE X
MISCELLANEOUS

 

Section 10.1 Assignment. Neither Party may assign this Agreement to any Third Party, in whole or in part, including by operation of law or otherwise without the prior written consent of the other Party. For purposes of this Agreement, any Change of Control of a Party shall be deemed an assignment. “Change of Control” means (a) an acquisition of the Party by another individual or entity by means of any transaction or series of related transactions pursuant to which such other individual or entity becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the voting stock of the relevant Party (including any reorganization, amalgamation, exchange offer, business combination, merger, consolidation or similar transaction), or (b) a sale, transfer, assignment, conveyance, or other disposition, directly or indirectly, in one or a series of related transactions, of all or substantially all of the assets of the Party. “Beneficial owner” means a beneficial owner as defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934. Prohibited assignments are null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ permitted successors and assigns. Notwithstanding anything in this Section 10.1, Licensee may (i) directly or indirectly, pledge, encumber, collaterally assign, transfer or otherwise grant a lien or other security interest on its rights hereunder (such pledge, encumbrance, assignment, transfer or grant, a “Pledge”) as collateral in connection with the Credit Agreement and (ii) assign this agreement in connection with a foreclosure (or a sale, assignment or other transfer in lieu of foreclosure) or other exercise of remedies of the Secured Parties (as defined in the Credit Agreement) (or any of their applicable representatives) with respect to the Pledge.

 

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Section 10.2 Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

Section 10.3 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement or any of the other Commercial Agreements creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between or among the Parties or any of their respective Affiliates for any purposes whatsoever (including for U.S. federal income tax purposes), neither Party shall, or shall permit its Affiliates to, hold itself out as an agent, partner, joint venturer, employer, employee or fiduciary of the other Party (or any of its Affiliates) in connection with this Agreement (including for U.S. federal income tax purposes), and neither Party has authority to contract or bind the other Party in any manner whatsoever.

 

Section 10.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (other than routine communications having no legal effect) must be in writing and sent to the respective Party at the following addresses (or at such other address for a Party as may be specified in a notice given in accordance with this Section). Notices sent in accordance with this Section will be deemed effective: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by an internationally recognized overnight courier (receipt requested); or (c) on the date sent by email (in each case, with confirmation of transmission, and only if an email address is provided by a Party to the other Party in a notice given in accordance with this Section), if sent during normal business hours of the recipient, and on the next day if sent after normal business hours of the recipient:

 

if to Licensor:

 

No. 2 Tian He Road, Trina PV Park, Xin Bei District

Changzhou, Jiangsu, PRC, 213031

Attention: Legal Department; Ailing Lv

Email: ailing.lv@trinasolar.com

 

with a copy (which shall not constitute notice) to:

 

Dorsey & Whitney LLP

51 West 52nd Street

New York, NY 10019-6119

United States

Attention: Catherine X. Pan-Giordano

Kevin Maler

Email: pan.catherine@dorsey.com

maler.kevin@dorsey.com

 

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if to Licensee:

 

6&8 East Court Square, Suite 300
Newnan, Georgia 30263
Attention: Compliance Officer
Email: compliance-officer@freyrbattery.com

 

with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London, EC2N 4BQ
Attention: Denis Klimentchenko and Danny Tricot
Email: denis.klimentchenko@skadden.com

danny.tricot@skadden.com

 

Section 10.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections, Exhibits, and Schedules refer to the Sections of, Exhibits of, and Schedules attached to this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

 

Section 10.6 Entire Agreement. This Agreement, together with all Exhibits, Schedules and attachments and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

 

Section 10.7 Third Party Beneficiaries. Except as providing in this Section 10.7 and as provided in Section 6.1 (Mutual Indemnification) and Section 6.2 (IP Infringement Claims), this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. The Parties acknowledge and agree that TUM 1 is a third-party beneficiary to this Agreement and may enforce the provisions of this Agreement against Licensor.

 

Section 10.8 Amendments and Waivers. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.

 

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Section 10.9 Severability. If any term or provision of this Agreement is invalid, illegal, void or unenforceable in any jurisdiction, such invalidity, illegality, voidability or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The Parties further agree to replace such invalid, illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal, void or unenforceable provision.

 

Section 10.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement.

 

Section 10.11 Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by Licensor are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101(35A) of the United States Bankruptcy Code regardless of the form or type of intellectual property under or to which such rights and licenses are granted and regardless of whether the intellectual property is registered in or otherwise recognized by or applicable to the United States of America or any other country or jurisdiction. The Parties agree that Licensee will retain and may fully exercise all of their rights and elections under the United States Bankruptcy Code. Licensor further agrees that, in the event of the commencement of a bankruptcy proceeding by or against Licensor under the United States Bankruptcy Code, Licensee will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property, which, if not already in Licensee’s possession, will be promptly delivered to it (i) upon any such commencement of a bankruptcy proceeding upon Licensee’s written request therefore, unless Licensor continues to perform all of its obligations under this Agreement, or (ii) if not delivered under clause (i) above, following the rejection of this Agreement by or on behalf of Licensor upon written request therefore by Licensee.

 

* * * * *

 

[SIGNATURE PAGES FOLLOW]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective representatives thereunto duly authorized.

 

  LICENSOR
   
  Trina Solar Co., Ltd.
   
  Signature:  /s/ Jifan Gao
  Name: Jifan Gao
  Title: Chairman, Director, General Manager
  Location: China
     
  LICENSEE
   
  FREYR Battery, Inc.
   
  Signature:  /s/ Daniel Barcelo
  Name: Daniel Barcelo
  Title: Authorized Signatory
  Location: New York, USA

 

[Signature Page to IP License Agreement]

 

 

 

 

 

Exhibit 10.9

 

Execution Version

 

CREDIT AGREEMENT

 

Dated as of July 16, 2024

 

among

 

TRINA SOLAR US MANUFACTURING MODULE 1, LLC,
as Borrower,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

HSBC BANK USA, N.A.,
as Administrative Agent

 

and

 

HSBC BANK USA, N.A.,
as Collateral Agent

___________________________________________________________________________

 

STANDARD CHARTERED BANK, SOCIÉTÉ GÉNÉRALE AND HSBC BANK USA, N.A.,
as Joint Lead Arrangers

 

STANDARD CHARTERED BANK,
as Green Loan Coordinator

_____________________________________________________

 

$235,000,000.00 Senior Secured Credit Facility

 

_____________________________________________________

 

 

 

 

 

 

TABLE OF CONTENTS

 

        Page
Article I DEFINITIONS AND ACCOUNTING TERMS   1
     
  Section 1.01. Certain Defined Terms   1
  Section 1.02. Computation of Time Periods; Other Definitional Provisions   43
  Section 1.03. Accounting Terms   44
  Section 1.04. Certifications, Etc.   45
  Section 1.05. Rates   45
         
Article II AMOUNTS AND TERMS OF THE CONSTRUCTION/TERM LOANS   45
     
  Section 2.01. The Construction/Term Loans   45
  Section 2.02. Making the Construction/Term Loans   46
  Section 2.03. Conversion Date.   47
  Section 2.04. Repayment of Construction/Term Loans   47
  Section 2.05. Prepayments; Reduction or Termination of Commitments   48
  Section 2.06. Interest   51
  Section 2.07. Conversion/Continuation of Construction/Term Loans   52
  Section 2.08. Promissory Notes; Register   52
  Section 2.09. Default Interest   53
  Section 2.10. Fees   53
  Section 2.11. Increased Costs, Etc.   54
  Section 2.12. Payments and Computations   55
  Section 2.13. Taxes   58
  Section 2.14. Mitigation Obligations; Replacement of Lenders   64
  Section 2.15. Right of Set-off   65
  Section 2.16. Defaulting Lenders   65
  Section 2.17. Sharing of Payments by Lenders   67
  Section 2.18. [Reserved]   67
  Section 2.19. Illegality   67
  Section 2.20. Inability to Determine Rates   68
  Section 2.21. Benchmark Replacement Setting   69
  Section 2.22. Compensation for Losses   70
  Section 2.23. Interest Elections   70
         
Article III [Reserved]   72
     
Article IV CONDITIONS PRECEDENT   72
     
  Section 4.01. Conditions Precedent to Closing Date   72
  Section 4.02. Conditions Precedent to Each Borrowing   76
  Section 4.03. Conditions Precedent to the Conversion Date   81
  Section 4.04. Notices   84

 

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Article V REPRESENTATIONS AND WARRANTIES   85
     
  Section 5.01. Representations and Warranties   85
         
Article VI AFFIRMATIVE COVENANTS   94
     
  Section 6.01. Reporting Requirements   94
  Section 6.02. Use of Proceeds   99
  Section 6.03. Compliance with Laws   99
  Section 6.04. Taxes   99
  Section 6.05. Hazardous Materials Activities, Etc.   99
  Section 6.06. Maintenance of Insurance   100
  Section 6.07. Preservation of Corporate Existence, Etc.   100
  Section 6.08. Visitation Rights   100
  Section 6.09. Keeping of Books   100
  Section 6.10. Obtain and Maintain Governmental Authorizations   100
  Section 6.11. Construction, Operation and Maintenance of Project   101
  Section 6.12. Accounts   101
  Section 6.13. Production and Sale of Qualified Solar Components   102
  Section 6.14. Performance of Material Contracts   102
  Section 6.15. Additional Security   102
  Section 6.16. Further Assurances   103
  Section 6.17. Maintenance of Property   103
  Section 6.18. Lender Calls   103
  Section 6.19. Separateness   103
  Section 6.20. [Reserved]   103
  Section 6.21. Hedging   104
  Section 6.22. [Reserved]   104
  Section 6.23. Registration   104
  Section 6.24. 45X Monetization   104
  Section 6.25. Green Loan Reports   105
  Section 6.26. TEXAS FINANCE CODE   105
  Section 6.27. Partnership.   105
  Section 6.28. Final Title Endorsement   105
         
Article VII NEGATIVE COVENANTS   106
     
  Section 7.01. Financial Covenants.   106
  Section 7.02. Liens   106
  Section 7.03. Debt   106

 

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  Section 7.04. Change in Nature of Business   107
  Section 7.05. Fundamental Changes   107
  Section 7.06. Disposition of Property   107
  Section 7.07. Investments   108
  Section 7.08. Restricted Payments   109
  Section 7.09. Accounting Changes   109
  Section 7.10. Sales and Leasebacks   109
  Section 7.11. Subsidiaries   110
  Section 7.12. Hedging Agreements   110
  Section 7.13. Capital Expenditures   110
  Section 7.14. Transactions with Affiliates   110
  Section 7.15. Amendments to Organizational Documents   111
  Section 7.16. Negative Pledge Agreements   111
  Section 7.17. Accounts   111
  Section 7.18. [Reserved]   111
  Section 7.19. Sanctions   111
  Section 7.20. Anti-Corruption Laws and Anti-Money Laundering Laws   111
  Section 7.21. Consents   111
  Section 7.22. [Reserved]   112
  Section 7.23. Tax Character   112
  Section 7.24. Election Revocation   112
  Section 7.25. Material Contracts   112
  Section 7.26. 48C Credit   112
         
Article VIII EVENTS OF DEFAULT   112
     
  Section 8.01. Events of Default   112
         
Article IX THE AGENTS   116
     
  Section 9.01. Appointment of Agents   116
  Section 9.02. Rights as a Lender   117
  Section 9.03. Exculpatory Provisions   117
  Section 9.04. Reliance by Agents   118
  Section 9.05. Delegation of Duties   119
  Section 9.06. Resignation of Agents   119
  Section 9.07. Non-Reliance on Agents and Other Lenders   120
  Section 9.08. Administrative Agent May File Proofs of Claim   120
  Section 9.09. Collateral Matters   121
  Section 9.10. Certain ERISA Matters   122
  Section 9.11. Erroneous Payments   123

 

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Article X MISCELLANEOUS   125
     
  Section 10.01. Notices   125
  Section 10.02. Expenses; Indemnity; Damage Waiver   127
  Section 10.03. Amendments and Waivers   130
  Section 10.04. Successors and Assigns; Participations   132
  Section 10.05. Independence of Covenants   136
  Section 10.06. Survival of Representations, Warranties and Agreements   136
  Section 10.07. No Waiver; Remedies Cumulative   136
  Section 10.08. Marshalling; Payments Set Aside   137
  Section 10.09. Severability   137
  Section 10.10. Obligations Several; Independent Nature of Lenders’ Rights   137
  Section 10.11. Headings   137
  Section 10.12. Governing Law; Jurisdiction; Etc.   137
  Section 10.13. Waiver Of Jury Trial   138
  Section 10.14. Treatment of Certain Information; Confidentiality   138
  Section 10.15. Usury Savings Clause   139
  Section 10.16. Counterparts; Integration; Effectiveness; Electronic Execution   140
  Section 10.17. Patriot Act   140
  Section 10.18. No Fiduciary Duty   140
  Section 10.19. Acknowledgment and Consent to Bail-In of Affected Financial Institutions   141
  Section 10.20. Acknowledgment Regarding Any Supported QFCs   141
  Section 10.21. No Other Duties   142
         
Article XI GREEN LOAN PROVISIONS   143
     
  Section 11.01. Green Loan Framework   143
  Section 11.02. Declassification Events   144

 

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SCHEDULES  
   
Schedule I Commitments; Applicable Lending Offices; Notices
Schedule A Acceptable Additional Third Party Offtake Contract Parameters
Schedule B Permitted Holders
Schedule 1.01 Non-Cumulative Compounded Rate Formula
Schedule 2.04 Amortization
Schedule 5.01(b) Capital Stock
Schedule 5.01(e) Governmental Authorizations
Schedule 5.01(n) Material Contracts
Schedule 6.06 Required Insurance
Schedule 7.03(b) Terms of Subordination
   
EXHIBITS  
   
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Note
Exhibit C-1 Form of Funding Notice
Exhibit C-2 Form of Notice of Conversion
Exhibit D Form of Solvency Certificate
Exhibit E Form of Compliance Certificate
Exhibit F Form of Conversion/Continuation Notice
Exhibit G-1 Form of Closing Date Certificate
Exhibit G-2 Form of Construction/Term Loan Disbursement Date Certificate
Exhibit G-3 Form of Conversion Date Certificate
Exhibit H-1 Form of U.S. Tax Compliance Certificate
Exhibit H-2 Form of U.S. Tax Compliance Certificate
Exhibit H-3 Form of U.S. Tax Compliance Certificate
Exhibit H-4 Form of U.S. Tax Compliance Certificate
Exhibit I Form of Prepayment Notice
   
Exhibit J-1 Form of Independent Engineer’s Certificate (Construction/Term Loan Disbursement Date)
Exhibit J-2 Form of Independent Engineer’s Certificate (Conversion Date)
Exhibit K-1 Form of Quarterly Construction Report
Exhibit K-2 Form of Monthly Construction Report
Exhibit K-3 Form of Monthly Operations Report
Exhibit L Form of Annual Operating Budget
Exhibit M Form of Direct Agreements
Exhibit N Form of RWE Offtake Contract Amendment

 

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CREDIT AGREEMENT

 

This CREDIT AGREEMENT, dated as of July 16, 2024 (this “Agreement”), is entered into by and among TRINA SOLAR US MANUFACTURING MODULE 1, LLC, a Texas limited liability company (the “Borrower”), THE LENDERS FROM TIME TO TIME PARTY HERETO and HSBC BANK USA, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and HSBC BANK USA, N.A., as collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”).

 

PRELIMINARY STATEMENTS:

 

WHEREAS, the Borrower intends to engage in the development, design, permitting, engineering, procurement, construction, completion, testing, operation and maintenance of a solar photovoltaic module manufacturing facility with a total annual production capacity of 5 GWdc to be located in Wilmer, Texas (the “Project”);

 

WHEREAS, the Borrower has identified “Renewable Energy” as a material environmental topic to its business and stakeholders, given that solar photovoltaic modules are considered key components when developing optimal renewable energy grid integration scenarios and are expected to play a significant role in global decarbonization efforts and, in determining that the Project qualify as an eligible project under the category of “Renewable Energy” in accordance to the Green Loan Principles, the Borrower evaluated the characteristics of the Project against available benchmarks and industry best practices applicable to the design, construction and completion of solar photovoltaic module manufacturing facilities;

 

WHEREAS, the Borrower has requested that the Lenders provide the senior secured facility described herein in order to, among other things, (a) fund Project Costs (as defined below) and (b) fund fees and expenses and other amounts due and payable hereunder and under the other Loan Documents;

 

WHEREAS, Holdings (defined below) owns 95% of the Capital Stock (defined below) of the Borrower and Trina Blocker (defined below) owns 5% of the Capital Stock of the Borrower;

 

WHEREAS Holdings owns 100% of the Capital Stock of Trina Blocker;

 

WHEREAS, the Borrower is treated as a partnership for U.S. federal income Tax purposes and, following completion of the Project, will be eligible to claim certain 45X Credits (defined below) which, together with the other cash flows generated by the Project, will be used by the Borrower to satisfy the Obligations (defined below); and

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

 

Article I
DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01. Certain Defined Terms. As used in this Agreement (including the preamble hereto and the preliminary statements hereto), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

45X Credits” means the advanced manufacturing production credit provided for in Sections 38(b)(38) and 45X(a) of the Internal Revenue Code.

  

 

 

 

Acceptable Additional Third Party Offtake Contract” means a contract for a firm commitment from a third party for the purchase of photovoltaic solar modules manufactured by the Project, with respect to which TUS has provided written notice to the Borrower within thirty (30) days following the execution and delivery of such contract that the “Committed Solar Volumes” (as defined in the TUS Offtake Contract) will be reduced by the purchase volumes under such contract, in form and substance reasonably satisfactory to the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed if such contract satisfies the parameters set forth in Schedule A).

 

Additional Deed of Trust” has the meaning specified in Section 6.15(a).

 

Acceptable DSRA Letter of Credit” has the meaning set forth in the Depositary Agreement.

 

Administrative Agent” has the meaning specified in the preamble hereto.

 

Administrative Agent’s Account” means an account of the Administrative Agent specified by the Administrative Agent in writing to the Borrower and the Lenders prior to the Closing or from time to time thereafter.

 

Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

Administrative Services Agreements” means (a) that certain Agreement for the Provision of Services, dated as of the date hereof, by and between the Borrower and Trina Solar Co., Ltd., a China corporation, and (b) that certain Agreement for the Provision of Services, dated as of the date hereof, by and between the Borrower and TUS.

 

Adverse Proceeding” means any action, suit, litigation or proceeding, at law or in equity or arbitration, before or by any Governmental Authority or arbitrator, domestic or foreign, in each case against any Sponsor Party or any Property of any Sponsor Party.

 

Adverse Change in Tax Law” has the meaning specified in Section 4.02(h).

 

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affected Party” has the meaning specified in Section 8.01(e).

 

Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that Person.

 

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Affiliate Transaction” has the meaning specified in Section 7.14.

 

Agency Fee Letter” means the fee letter, dated the date hereof, among the Borrower, the Administrative Agent, the Collateral Agent and the Depositary Bank.

 

Agent Parties” has the meaning specified in Section 10.01(d)(ii).

 

Agents” means, individually or collectively, as the context may require, the Administrative Agent, the Collateral Agent and the Depositary Bank.

 

Agreement” has the meaning specified in the preamble hereto.

 

Annual Operating Budget” has the meaning specified in Section 6.11(b).

 

Anti-Corruption Laws” means any and all laws, rules or regulations of any jurisdiction relating to or concerning the prohibition or prevention of bribery or corruption, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act 2010.

 

Anti-Money Laundering Laws” means any and all laws, rules or regulations of any jurisdiction relating to or concerning the prohibition or prevention of money laundering or terrorism financing, including, but not limited to, the Patriot Act.

 

Applicable Equator Principles” means those principles so entitled and described in “The Equator Principles - A financial industry benchmark for determining, assessing and managing environmental and social risk in projects” (July 2020) and available at: https://equator-principles.com/wp-content/uploads/2020/05/The-Equator-Principles-July-2020-v2.pdf.

 

Applicable Margin” means 3.50% per annum for Base Rate Loans and 2.50% per annum for SOFR Loans.

 

Applied 45X Proceeds” means, with respect to any Measurement Period, the amount of cash proceeds actually received by the Borrower from Direct Payments or Transfer Payments for 45X Credits generated from the production of Qualified Solar Components to the extent such amounts have been applied during such Measurement Period against “Purchase Price” (as such term is defined in the RWE Offtake Contract and the TUS Offtake Contract; and as such term, or any similar term, is defined in any Acceptable Additional Third Party Offtake Contract) in the form of a true-up adjustment credit memo, cash or otherwise.

 

Approved Fund” means any Fund that is administered or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a Lender.

 

Approved Hedge Counterparty” means (i) Person who is, or was at the time of the execution of the applicable Hedging Agreement, a Lender or an Affiliate of a Lender or (ii) another Person that is reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders).

 

Approved Self Monetization Structure” has the meaning specified in Section 4.02(i).

 

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Asset Sale” means the Disposition (by way of merger, casualty, condemnation or otherwise) by the Borrower to any Person of any Property of the Borrower, as applicable, (other than any Disposition permitted under Section 7.06(b), (c), (d), (f), or (g)).

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender, on the one hand, and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.04), on the other hand, and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.21(d).

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

 

Base Case Model” means the base case financial model delivered to the Administrative Agent for the Lenders by the Borrower pursuant to Section 4.01(o), as may be updated as required pursuant to this Agreement.

 

Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50% and (c) Daily Simple SOFR. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Daily Simple SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or Daily Simple SOFR, respectively.

 

Base Rate Borrowing” means, as to any Borrowing, the Base Rate Construction/Term Loans comprising such Borrowing.

 

Base Rate Loan” means a Loan that bears interest based upon the Base Rate.

 

Benchmark” means, initially, Daily Compounded SOFR; provided that if a Benchmark Transition Event has occurred with respect to Daily Compounded SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.21(a).

 

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Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Required Lenders, the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Notwithstanding the foregoing, any Benchmark Replacement shall meet the standards set forth in Section 1.1001-6 of the United States Treasury Regulations (or any successor United States Treasury Regulations or other official IRS guidance promulgated that supersedes such United States Treasury Regulations) or otherwise not cause a “significant modification” (and therefore an exchange) of any Construction/Term Loans for purposes of Section 1.1001-3 of the United States Treasury Regulations.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Required Lenders, the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

 

Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a)in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof); or

 

(b)in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, if such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

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Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);

 

(b)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or

 

(c)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

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Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth (90th) day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).

 

Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21.

 

Beneficial Ownership Certification” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.

 

BHC Act Affiliate” has the meaning specified in Section 10.20(b).

 

Borrower” has the meaning specified in the preamble hereto.

 

Borrower LLC Agreement” means that certain Second Amended and Restated Company Agreement of Borrower adopted as of July 11, 2024.

 

Borrower Notice” has the meaning specified in Section 4.01(g).

 

Borrowing” means a borrowing consisting of Construction/Term Loans of the same Type and, in the case of a SOFR Borrowing, having the same Interest Period.

 

Building/Manufactured Home” means a “Building” or “Manufactured (Mobile) Home” as each such term is defined in the Flood Insurance Regulations.

 

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Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions in such state are authorized or required by law to close.

 

Capital Expenditures” means, for any period, the aggregate of all expenditures of the Borrower or any Subsidiary during such period without duplication that, in accordance with GAAP, are or should be included in “property, plant and equipment” or similar items reflected in the consolidated balance sheet of the Borrower or in “purchase of property and equipment” or similar items reflected in the consolidated statement of cash flows of the Borrower.

 

Capital Leases” means, as applied to any Person, any lease of any Property by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

 

Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests, limited liability company interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.

 

Cash” means money, currency or a credit balance in any demand account or Deposit Account.

 

Cash Available for Debt Service” means, for any Measurement Period, the sum (without duplication) of all revenues that the Loan Parties have actually received in Cash during such period plus any Applied 45X Proceeds minus the Operating Expenses and Taxes paid by the Loan Parties during such period.

 

Cash Equivalents” means any of the following:

 

(a) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations unconditionally guaranteed by the full faith and credit of any of such issuing government, agency or instrumentality, in each case denominated in Dollars and maturing within one year from the date of acquisition thereof;

 

(b) investments in commercial paper or fixed rate notes maturing within three hundred sixty-five (365) days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-2 or P-2 from either S&P or Moody’s (or, at any time that neither S&P nor Moody’s rates such obligations, an equivalent rating from another nationally recognized rating service);

 

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within three hundred sixty-five (365) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent, any Lender or any domestic office of any commercial bank organized under the laws of the United States of America, any state thereof, any country that is a member of the OECD or any political subdivision thereof, that has a combined capital and surplus and undivided profits of not less than $500,000,000;

 

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(d) fully collateralized repurchase agreements with a term of not more than thirty (30) days for Securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above or securities dealers of recognized national standing; and

 

(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, substantially all of whose assets are invested in “first tier” investments as required under such Rule.

 

Casualty Event” means a casualty event that causes all or a portion of the Property of the Borrower to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, other than (a) any such event or series of related events that does not result in Net Cash Proceeds exceeding $5,000,000 (b) ordinary use and wear and tear or (c) any Event of Eminent Domain.

 

Casualty Event Proceeds” means the proceeds of a Casualty Event.

 

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

 

Change of Control” means the occurrence of any of the following:

 

(a) Holdings ceases to retain, directly, 95% of the Capital Stock of the Borrower or 100% of the Capital Stock of Trina Blocker;

 

(b) Trina Blocker ceases to retain, directly, 5% of the Capital Stock of the Borrower;

 

(c) the Sponsor ceases to retain, directly or indirectly, at least 25% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies of Borrower;

 

(d) (i) at any time prior to date on which the Sponsor has delivered the duly executed Management Services Agreement or if, at any time thereafter, such Management Services Agreement ceases to be in full force and effect, the Sponsor ceases to retain, directly or indirectly, 50.1% of the Capital Stock of Holdings and (ii) on and from the date on which the Sponsor has delivered the duly executed Management Services Agreement and so long as such Management Services Agreement remains in full force and effect, the Sponsor and Permitted Holders collectively cease to retain, directly or indirectly, (x) prior to the Conversion Date, 100% of the Capital Stock of Holdings and (y) thereafter, 50.1% of the Capital Stock of Holdings;

 

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(e) the Sponsor ceases to retain, directly or indirectly (including by contract), day-to- management control of the (i) management of the Borrower and (ii) operations of the Project;

 

(f) at any time prior to the date on which TUS’s commitment under the TUS Offtake Contract is reduced to zero, the Sponsor ceases retain, directly or indirectly, management control of TUS; or

 

(g) at any time prior to the date on which TUS’s commitment under the TUS Offtake Contract is reduced to zero, the Sponsor ceases to retain, directly or indirectly, at least 25% of the Capital Stock of TUS.

 

Charges” has the meaning specified in Section 10.15.

 

Closing Date” means the date on which the conditions precedent set forth in Section 4.01 have been satisfied or waived in accordance with Section 10.03.

 

COD” means the date on which (i) the Project has achieved “Substantial Completion” (or equivalent term, as defined in the Retrofit EPC Contract) and (ii) the Facility Commissioning Date under each Offtake Contract has occurred.

 

Collateral” means all Property of the Borrower, now owned or hereafter acquired, other than the Excluded Assets, which is subject to the security interests or Liens granted pursuant to any of the Collateral Documents.

 

Collateral Account” means the Depositary Accounts and the Local Account.

 

Collateral Agent” has the meaning specified in the preamble hereto.

 

Collateral Documents” means the Deed of Trust, the Pledge and Security Agreement, the Depositary Agreement, each Direct Agreement, the Local Account DACAs and each other agreement that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations.

 

Communications” has the meaning specified in Section 10.01(d)(ii).

 

Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit E.

 

Conforming Changes” means, with respect to either the use or administration of Daily Compounded SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.21 and other technical, administrative or operational matters) that the Administrative Agent and the Required Lenders decide may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent and the Required Lenders decide is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

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Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Construction Account” has the meaning set forth in the Depositary Agreement.

 

Construction Budget and Schedule” means a reasonably detailed schedule of the development and construction of the Project and a reasonably detailed total budget for the Project, set forth in the Base Case Model delivered on the Closing Date, as amended, supplemented or otherwise modified from time to time by the Borrower and delivered to the Administrative Agent if and to the extent required under Section 6.01(f).

 

Construction Contract” means, as the context requires, individually or collectively, (a) the Retrofit EPC Contract and (b) each Equipment Supply Contract.

 

Construction Contractor” means, as the context requires, individually or collectively, (a) the Retrofit EPC Contractor and (b) each Equipment Supplier.

 

Construction/Term Loan” or “Loans” means the Construction/Term Loans made by the Lenders to the Borrower pursuant to Sections 2.01(b) and 2.02.

 

Construction/Term Loan Availability Period” means the period commencing on the Closing Date and ending on the earliest to occur of (a) the Conversion Date, (b) the Date Certain, (c) the date that the Construction/Term Loans are drawn in full and (d) the date of rescission, termination or cancellation of the Construction/Term Loan Commitments.

 

Construction/Term Loan Commitment” means with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I under the caption “Construction/Term Loan Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, set forth for such Lender in the Register maintained by the Administrative Agent as such Lender’s “Construction/Term Loan Commitment.”

 

Contractual Obligation” means, as applied to any Person, any provision of any indenture, mortgage, deed of trust, contract, agreement or other instrument to which such Person is a party or by which it or any of its Properties is bound.

 

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Control” means (including, with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

 

Conversion,” “Convert” and “Converted” each refer to a conversion of Construction/Term Loans of one Type into Construction/Term Loans of the other Type pursuant to Section 2.07.

 

Conversion Date” means the date on which the conditions precedent set forth in Section 4.03 have been satisfied or waived in accordance with Section 10.03.

 

Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit F.

 

Cost Overrun Event” means any event or series of events which causes or is reasonably expected to cause (a) the actual total Project Costs incurred or required to be incurred in order to achieve COD and the Conversion Date on or prior to the Date Certain to exceed (b) the total Project Costs contemplated in the Construction Budget and Schedule.

 

Covered Entity” has the meaning specified in Section 10.20(b).

 

Covered Party” has the meaning specified in Section 10.20(a).

 

Cumulative Equity Contributions” means, at any time, without duplication, the aggregate amount of (a) documented fees and expenses paid by Sponsor or an Affiliate thereof on behalf of the Borrower prior to the Closing Date, to the extent constituting Project Costs and verified by the Independent Engineer, (b) cash equity and capital investment (to the extent constituting Project Costs, as verified in writing by the Independent Engineer prior to the Closing Date) contributed by or on behalf of the Sponsor to the Borrower prior to the Closing Date, (c) the “Production Reservation Fee” (as defined in the RWE Offtake Contract) actually paid by RWE pursuant to the RWE Offtake Contract and received by the Borrower prior to the Closing Date, to the extent used to pay Project Costs and verified by the Independent Engineer, (d) the “Production Reservation Fee” (as defined in the TUS Offtake Contract) actually paid to the Borrower by TUS pursuant to the TUS Offtake Contract (and, to the extent received prior to the Closing Date, used to pay Project Costs and verified by the Independent Engineer), (e) any “Production Reservation Fee” (or any similar or equivalent term, howsoever defined in any Non-TUS Reducing Offtake Contract) received by the Borrower under such Non-TUS Reducing Offtake Contract (so long as neither the Offtaker under such Non-TUS Reducing Offtake Contract nor any other Person (including any surety or guarantor providing support for the Borrower’s obligations under such Non-TUS Reducing Offtake Contract, whether via subrogation or otherwise) has any recourse against the Borrower for the return of any such amount) and (f) all Base Equity Contributions and Accelerated Equity Contributions (each as defined in the Equity Contribution Agreement) made by the Sponsor following the Closing Date pursuant to the Equity Contribution Agreement, which in the case of this clause (f) can be made in the form of equity or Subordinated Debt, regardless of the source of such contributions.

 

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Cure Right” has the meaning specific in Section 7.01.

 

Daily Compounded SOFR” has the meaning specified in Schedule 1.01.

 

Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day, a “SOFR Determination Day”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website, and (b) the Floor. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR Determination Day has not been published on the SOFR Administrator’s Website, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.

 

Date Certain” means the date falling on the earlier of (i) February 13, 2025 and (ii) the date that is forty-five (45) days prior to Guaranteed COD.

 

Debt” means, as applied to any Person and without duplication:

 

(a) that portion of the obligations of such Person with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP;

 

(b) all obligations of such Person (i) in respect of indebtedness for borrowed money or (ii) evidenced by notes, bonds, debentures, drafts or other similar instruments representing extensions of credit;

 

(c) any obligation of such Person owed for all or any part of the deferred purchase price of Property or services, to the extent such purchase price is due more than six (6) months from the later of the date of incurrence thereof and the date of completion of the delivery of the relevant Property or the rendering of the relevant services;

 

(d) all Debt of any other Person that is secured by any Lien on any Property or asset owned or held by such first Person regardless of whether the Debt secured thereby shall have been assumed by such first Person or is nonrecourse to the credit of that Person; provided that, except to the extent such Debt has been assumed by such first Person or is otherwise recourse to the credit of such first Person, the amount of such Debt so secured shall be deemed limited to the lesser of (i) the principal of the Debt so secured and (ii) the fair market value (as determined in good faith by the Borrower) of the Property or asset of such first Person securing such Debt;

 

(e) the face amount of any letter of credit or similar instrument issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings; and

 

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(f) all Debt of any other Person that is Guaranteed by such first Person.

 

Debt Proceeds” means, with respect to the incurrence or issuance of any Debt by the Borrower (other than Debt permitted to be incurred or issued pursuant to Section 7.03), the Net Cash Proceeds received by the Borrower in connection with such incurrence or issuance.

 

Debt Service” means, for any Measurement Period, the sum, computed without duplication, of the following: (a) all scheduled principal installments payable pursuant to Section 2.04 during such Measurement Period, plus (b) all amounts payable by the Borrower in respect of interest on the Construction/Term Loans (net of amounts paid or received by the Borrower under any Interest Rate Hedge (other than termination or unwind payments under such Interest Rate Hedge)) during such Measurement Period, plus (c) all fees and other amounts payable under this Agreement and the other Loan Documents to any Lender or any Agent by the Loan Parties during such Measurement Period.

 

Debt Service Coverage Ratio” means, for any Measurement Period, the ratio of (a) the aggregate Cash Available for Debt Service to (b) Debt Service for such Measurement Period.

 

Debt Service Reserve Account” has the meaning set forth in the Depositary Agreement.

 

Debt Service Reserve Required Balance” means, as of any date of determination, an amount equal to the next six (6) months of Debt Service.

 

Debt Sizing Criteria” means (a) a Debt to Equity Ratio of no greater than 40:60; (b) a minimum Debt Service Coverage Ratio, calculated based on the portion of the Project’s output that is subject to contracted revenues projected to be received under the TUS Offtake Contract and the RWE Offtake Contract, of 1.25x for each rolling four quarter period from the Conversion Date through the Maturity Date; (c) a minimum Debt Service Coverage Ratio, calculated based on projected merchant revenues, of 2.0x for each rolling four quarter period from the Conversion Date through the Maturity Date; and (d) merchant revenues shall account for no more than 20 % of the total debt sizing.

 

Debt to Equity Ratio” means, as of any date of determination, the ratio of the outstanding principal balance of the Construction/Term Loans to the amount of Cumulative Equity Contributions.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

Declassification Event” has the meaning set forth in Section 11.02(b).

 

Deed of Trust” has the meaning specified in Section 4.01(e)(i).

 

Default” means any Event of Default or a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

 

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Default Right” has the meaning specified in Section 10.20(b).

 

Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Construction/Term Loans within two (2) Business Days of the date such Construction/Term Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent or the Borrower, as applicable), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Borrower and the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

 

Deposit Account” means a demand, time, savings, checking, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

 

Depositary Accounts” has the meaning set forth in the Depositary Agreement.

 

Depositary Agreement” means that certain Depositary Agreement dated as of the date hereof, among the Borrower, the Administrative Agent, the Collateral Agent and the Depositary Bank.

 

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Depositary Bank” means HSBC Bank USA, N.A. in its capacity as Depositary Bank under the Depositary Agreement.

 

Direct Agreement” means, with respect to any Material Contract, a direct agreement or consent to collateral assignment of such Material Contract.

 

Direct Pay Election” means an election under Section 6417(a) of the Internal Revenue Code with respect to 45X Credits.

 

Direct Payment” means a payment from the Treasury or IRS pursuant to Section 6417 of the Internal Revenue Code with respect to 45X Credits.

 

Disbursement Date” means the date of any Borrowing of Construction/Term Loans.

 

Disposition” means, with respect to any Property, any sale, lease, sale and leaseback transaction, assignment, conveyance, transfer or other disposition (including by way of a merger, consolidation, casualty, condemnation or issuance of any Capital Stock) of such Property or any interest therein (excluding the creation of any Liens permitted by Section 7.02 on such Property but including the sale or factoring of any accounts or permitting or suffering any other Person to acquire any interest in any Property other than a Lien permitted by Section 7.02 in such Property) or the entering into any agreement to do any of the foregoing before the full and final payment of the Obligations; and the terms “Dispose” and “Disposed of” shall have correlative meanings.

 

Distribution Reserve Account” has the meaning set forth in the Depositary Agreement.

 

Dollars” and the sign “$” mean the lawful currency of the United States of America.

 

Down Date Endorsement” has the meaning specified in Section 4.02(m).

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.04(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.04(b)(iii)).

 

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Eminent Domain Proceeds” means, with respect to any Event of Eminent Domain, the Net Cash Proceeds received by any Loan Party in connection with such Event of Eminent Domain.

 

Employee Benefit Plan” means any material “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed to by the Borrower or any of its ERISA Affiliates.

 

Environmental Action” means any investigation, notice, notice of violation, claim, Adverse Proceeding, action, suit, demand, abatement order or other order or directive (conditional or otherwise) arising (a) pursuant to any Environmental Law or otherwise in connection with any actual or alleged violation of, or liability pursuant to, any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; (c) in connection with any actual or alleged damage, injury, threat or harm to human health or safety (in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity or any actual or alleged violation of any Environmental Law) or the environment (including natural resources) or (d) in relation to any Environmental and Social Requirements, in each case against any Loan Party, the Project or any other Property of any Loan Party.

 

Environmental and Social Requirements” means (collectively) any Environmental Law, Environmental Permit and Applicable Equator Principles.

 

Environmental Consultant” means Terracon Consultants, Inc., or any replacement thereof of nationally recognized standing appointed by the Administrative Agent (at the direction of the Required Lenders) with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).

 

Environmental Consultant Report” means that certain Phase I Environmental Site Assessment covering the approximately 95-acre tract of land, Trina Solar Warehouse, located at 1200 North Sunrise Road, Wilmer, Dallas County, Texas, dated as of May 31, 2024, for Terracon Project No. 94247515, prepared by the Environmental Consultant.

 

Environmental Law” means any and all federal, state or local (or any subdivision of thereof) laws (including common law), statutes, ordinances, orders, rules, regulations, judgments, or Governmental Authorizations, or any other legally enforceable requirements of Governmental Authorities relating to (a) pollution or protection of the environment, including those relating to any Hazardous Materials Activity or (b) human safety and health, including health, safety and security relating to community, public and workforce or relating to use of or exposure to Hazardous Materials, in any manner applicable to any Loan Party, the Project or any Real Estate Asset.

 

Environmental Permit” means any permit, license, consent, approval or other authorization and the filling of any notification, required by any relevant Governmental Authority under any applicable Environmental Law for the construction or operation of the Project.

 

Equipment Supplier” means each counterparty (other than the Borrower) to the Equipment Supply Contracts.

 

Equipment Supply Contracts” means, collectively,

 

(a)that certain Purchase Contract No. TUM-A11068-2311-CGC-8701-0 dated as of November 23, 2023, by and between the Borrower and Wuxi Autowell Supply Chain Management Co., Ltd.;

 

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(b)that certain Purchase Contract No. TUM-A11068-2312-CGC-8895-0 dated as of December 1, 2023, by and between the Borrower and Shengcheng Technology Pte, Ltd.;

 

(c)that certain Purchase Contract No. TUM-A11068-2311-CGC-8674-0, dated as of November 15, 2023, by and between the Borrower and Busch Vacuum (Shanghai) Co., Ltd.;

 

(d)that certain Purchase Contract No. TUM-A11068-2311-CGC-8844-0, dated as of November 15, 2023, by and between the Borrower and Delicacy Laser Optoelectronics (Langfang) Technology Co., Ltd.;

 

(e)that certain Purchase Contract No. TUM-A11068-2401-CGC-0265-0 dated as of January 8, 2023, by and between the Borrower and Shengcheng Technology Pte, Ltd.;

 

(f)that certain Purchase Contract No. TUM-A11068-2312-CGC-9324-0 dated as of December 7, 2023, by and between the Borrower and Shengcheng Technology Pte, Ltd.; and

 

(g)that certain Purchase Contract No. TUM-A11068-2312-CGC-9339-0 dated as of December 7, 2023, by and between the Borrower and Suzhou Junion Intelligent Technology Co., Ltd.

 

Equity Contribution Agreement” means that certain Equity Contribution Agreement dated as of the date hereof, among the Sponsor, the Borrower, Holdings, the Administrative Agent and the Collateral Agent.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

 

ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) solely for the purpose of the funding requirements of Section 412 of the Internal Revenue Code or Section 302 of ERISA any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of the Borrower shall continue to be considered an ERISA Affiliate of the Borrower within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Borrower and with respect to liabilities arising after such period for which the Borrower could be liable under the Internal Revenue Code or ERISA.

 

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ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty (30)-day notice to the PBGC has been waived by regulation as in effect on the date hereof); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by the Borrower or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any of the Borrower or any of its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan; (f) the imposition of liability on the Borrower or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, or the receipt by any of the Borrower or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which gives rise to the imposition on the Borrower or any of its ERISA Affiliates of fines, penalties, Taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) receipt from the IRS of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (j) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan; or (k) any event with respect to any Foreign Plan that results in liability to the Borrower or any of its Subsidiaries substantially similar to the liability that could arise with respect to an event described in clauses (a) through (j) above.

 

Erroneous Payment” has the meaning specified in Section 9.11(a).

 

Erroneous Payment Subrogation Rights” has the meaning specified in Section 9.11(d).

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Event of Abandonment” means that all construction or operation of the Project shall have been abandoned for a period of at least one hundred twenty (120) consecutive days; provided that an “Event of Abandonment” shall not include a Casualty Event, Event of Eminent Domain, a force majeure event, scheduled maintenance of the Project, repairs to the Project, whether or not scheduled, or an outage.

 

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Event of Default” has the meaning specified in Section 8.01.

 

Event of Eminent Domain” means any action, series of actions, omissions or series of omissions by any Governmental Authority (a) by which such Governmental Authority appropriates, confiscates, condemns, expropriates, nationalizes, seizes or otherwise takes all or a material portion of the Collateral or the Project or (b) by which such Governmental Authority assumes custody or control of all or a material portion of the Project, the business operations of any Loan Party or the Capital Stock of the Borrower. For purposes hereof, any such event described above that either (i) does not result in Net Cash Proceeds exceeding $5,000,000 or (ii) does not materially and adversely affect the ability of the Borrower to continue to operate the Project for its intended purposes and for Borrower to be entitled to 45X Credits in respect of the operation of the Project, as applicable, shall be deemed not to be an Event of Eminent Domain.

 

Event of Total Loss” means, in relation to the Project, any of the following: (a) the complete destruction of the Project, (b) the destruction of the Project such that there remains no substantial remnant thereof which a prudent owner, uninsured, desiring to restore the Project to its original condition would utilize as the basis of such restoration, (c) the destruction of the Project irretrievably beyond repair or (d) the destruction of the Project such that the insured may claim the whole amount of any insurance policy covering the Project Property upon abandoning the Project to the insurance underwriters therefor.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute.

 

Excluded Assets” means the following: (a) motor vehicles, aircraft, rolling stock, vessels and other assets subject to certificates of title; (b) Letter of Credit Rights (as defined in the UCC) with an individual value of less than $1,000,000 in the aggregate; (c) Commercial Tort Claims (as defined in the UCC) with an individual value of less than $5,000,000 in the aggregate; (d) any lease, license, permit, Governmental Authorization, contract or other agreement to the extent that a grant of a security interest therein would create a right of termination in favor of any other party thereto (other than a Sponsor Party or any Affiliates thereof), would constitute or result in abandonment, invalidation or unenforceability of any right of the grantor therein, would constitute a breach or result in a default thereunder, would be prohibited by applicable law or would require a consent (other than from a Sponsor Party or any Affiliates thereof) that has not been obtained (in each case, after giving effect to the applicable anti-assignment provisions of the UCC); (e) any equipment or any Property subject to a purchase money security interest or similar arrangement permitted by the Loan Documents to the extent that a grant of a security interest therein is prohibited or requires the consent of any person other than the grantor, a Sponsor Party or an Affiliate of the foregoing as a condition to creation of any other Lien but only to the extent, and for so long as, the Debt secured by the applicable Lien has not been repaid or the prohibition has not been removed or terminated; (f) all United States intent-to-use trademark applications with respect to which the grant of a security interest therein would impair the validity or enforceability of said intent-to-use trademark application under federal law; and (g) those assets as to which the Required Lenders agree in writing in their sole discretion that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby.

 

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Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Construction/Term Loan Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Construction/Term Loan Commitment (other than pursuant to an assignment request by the Borrower under Section 2.14(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.13, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.13(f) and (d) any withholding Taxes imposed under FATCA.

 

Facility” means, at any time, the aggregate amount of the Lenders’ Construction/Term Loan Commitments at such time.

 

Facility Commissioning Date” means the occurrence of the “Facility Commissioning Date” (as such term, or any similar, equivalent term, is defined in the applicable Offtake Contract).

 

FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof or official guidance relating thereto, any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Internal Revenue Code, any legislation, regulations, treaty, guidance notes, rules or practices of any jurisdiction adopted in connection with the implementation of any such intergovernmental agreement, and any agreement pursuant to the implementation of any legislation, regulation, convention or treaty referred to above with the IRS or other Governmental Authority.

 

FATCA Application Date” means:

 

(a) in relation to a “withholdable payment” described in Section 1473(1)(A)(i) of the Internal Revenue Code (which relates to payments of interest and certain other payments from sources within the U.S.), July 1, 2014; or

 

(b) in relation to a “passthru payment” described in Section 1471(d)(7) of the Internal Revenue Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

 

FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.

 

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FATCA Exempt Party” means a party that is entitled to receive payment that is exempt under applicable law from any FATCA Deduction.

 

Federal Funds Rate” means, for any day, the greater of (a) the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the Federal funds effective rate and (b) 0%.

 

Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.

 

Fee Letters” means, collectively, the Agency Fee Letter and the Upfront Fee Letters.

 

Fiscal Quarter” means each fiscal quarter ending on the last day of March, June, September and December of each year.

 

Fiscal Year” means a fiscal year of the Borrower ending on December 31 of each calendar year.

 

Flood Insurance Regulations” means (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001, et seq.), as the same may be amended or recodified from time to time, and (iv) the Flood Insurance Reform Act of 2004 and any regulations promulgated thereunder.

 

Floor” means a rate of interest equal to 0%.

 

Foreign Lender” means a Lender that is not a U.S. Person.

 

Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Borrower with respect to employees employed outside the United States, other than any such plan, program, policy, arrangement, or agreement that is funded through a trust or funding vehicle maintained exclusively by a Governmental Authority.

 

Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial Construction/Term Loans and similar extensions of credit in the ordinary course of its activities.

 

Funding Notice” has the meaning specified in Section 2.02(c).

 

GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, subject to Section 1.03.

 

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Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Governmental Authorization” means any authorization, approval, consent, franchise, license, order, ruling, permit, certification, exemption, notice, declaration, determination or similar action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

 

Green Loan Coordinator” means Standard Chartered Bank appointed hereunder to facilitate voluntary alignment by the parties with the four components of the Green Loan Principles in connection with this Agreement.

 

Green Loan Framework” has the meaning specified in Section 5.01(kk).

 

Green Loan Principles” shall mean the voluntary recommended guidelines for categorizing loans as “green” published by the Loan Market Association, Asia Pacific Loan Market Association and Loan Syndication and Trading Association in relation to promoting the development and integrity of green loan products as in effect on the date hereof.

 

Green Loan-Related Information” has the meaning specified in Section 5.01(kk).

 

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or Loan or supply funds for the purchase or payment of) such Debt or to purchase (or to Loan or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease Property, Securities or services for the purpose of assuring the owner of such Debt of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Debt; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Debt). The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of the Debt guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by the Borrower)). The term “Guaranteed” has the corresponding meaning.

 

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Guaranteed COD” means the earlier of (a) the date after which, if the Project has not achieved the Facility Commissioning Date, the Offtaker under any Offtake Contract would be entitled to terminate such Offtake Contract and (b) March 31, 2025.

 

Hazardous Materials” means (a) any petrochemical or petroleum products, oil, waste oil, radioactive materials, asbestos, urea formaldehyde foam insulations, toxic mold, lead-based paint, per- and polyfluoroalkyl substances and polychlorinated biphenyls; and (b) any mixtures, compounds, chemicals, materials, wastes, substances, pollutants or contaminants that are regulated under, or could give rise to liability under, Environmental Laws.

 

Hazardous Materials Activity” means any generation, use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement, transportation, processing, treatment, abatement, investigation, removal, remediation, corrective or response action, disposal, disposition or handling of, or exposure to, any Hazardous Materials.

 

Hedging Agreement” means any agreement with respect to any swap, forward, future or derivative transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies, commodities, prices of equity or debt securities or instruments, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions.

 

Highest Lawful Rate” has the meaning specified in Section 10.15.

 

Holdings” means Trina Solar US Manufacturing Holding, Inc., a Delaware corporation.

 

International Financial Reporting Standards” or “IFRS” are the accounting and financial reporting standards issued by the International Accounting Standards Board for the preparation of general purposes financial statements.

 

Illegality Notice” has the meaning specified in Section 2.19.

 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

Indemnitee” has the meaning specified in Section 10.02(b).

 

Independent Engineer” means DNV Energy USA Inc., or any replacement thereof of nationally recognized standing appointed by the Administrative Agent (at the direction of the Required Lenders) with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).

 

Independent Engineer Certificate (Disbursement Date)” means a certificate duly completed and executed by the Independent Engineer in the form of Exhibit J-1.

 

Independent Engineer Certificate (Conversion Date)” means a certificate duly completed and executed by the Independent Engineer in the form of Exhibit J-2.

 

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Independent Engineer Report” means the Technical Due Diligence Report, Document No. 1048 12 46-HOU-R-01 dated as of July 9, 2024 by Independent Engineer for Borrower.

 

Information” has the meaning specified in Section 10.14.

 

Initial Lenders” means Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A..

 

Insurance Consultant” means Aon Risk Consultants, Inc., or any replacement thereof of nationally recognized standing appointed by the Administrative Agent (at the direction of the Required Lenders) with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).

 

Insurance Consultant Report” means the report prepared by the Insurance Consultant, titled Trina Solar Financing Project AGRC Lenders’ Insurance Advisor Report, and dated as of May 15, 2024.

 

Insurance Proceeds” means, with respect to any Casualty Event, the Net Cash Proceeds received by any Loan Party from time to time from insurance with respect to such Casualty Event.

 

Intellectual Property” means all intellectual property and intellectual property rights in any worldwide jurisdiction, including, but not limited to, all (a) patents, utility models, inventions, processes, developments, technology, and know how; (b) software (including source and object code), copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs, and photographs; (c) trademarks, service marks, trade names, brand names, corporate names, internet domain names, social media handles, logos, trade dress, and other source indicators, and the goodwill of any business symbolized thereby and appurtenant thereto; (d) trade secrets, confidential, proprietary, and non public information, data, databases, data sets, processes and other technology; (e) to the extent applicable, all issuances and registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions, reexaminations or reissues of any of the foregoing; and (f) any and all proceeds, and other income, claims for damages or injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to sue for and collect, or otherwise recover, such damages.

 

Intercompany Poly Supply Agreement” means that certain Intercompany Sales Agreement, dated as of January 1, 2024, by and between the Borrower and Intercompany Poly Supplier.

 

Intercompany Poly Supplier” means Trina Solar (Viet Nam) Wafer Company Limited, a Vietnam limited liability company.

 

Intercompany Supply Agreement” means that certain Intercompany Sales Agreement, dated as of the date hereof, by and between the Borrower and the Sponsor.

 

Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.23, which shall be in such form as the Administrative Agent may approve.

 

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Interest Period” means, as to any Borrowing, the period commencing on the date of such Loan or Borrowing and ending on the numerically corresponding day in the calendar month that is one or three months thereafter (in each case, subject to the availability thereof), as specified in the applicable Funding Notice or Interest Election Request; provided that (i) if any Interest Period would end on a day other than a U.S. Government Securities Business Day, such Interest Period shall be extended to the next succeeding U.S. Government Securities Business Day unless such next succeeding U.S. Government Securities Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding U.S. Government Securities Business Day, (ii) any Interest Period that commences on the last U.S. Government Securities Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last U.S. Government Securities Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall extend beyond the Maturity Date and (iv) no tenor that has been removed from this definition pursuant to Section 2.21(d) shall be available for specification in such Funding Notice or Interest Election Request. For purposes hereof, the date of a Loan or Borrowing initially shall be the date on which such Loan or Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan or Borrowing.

 

Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.

 

Interest Rate Hedge” means, individually or collectively, as the context may require, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the Borrower’s operations and not for speculative purposes entered into with an Approved Hedge Counterparty.

 

Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.

 

Investment” means, for any Person: (a) the acquisition (whether for cash, Property, services or securities or otherwise) of Capital Stock of any other Person (including, without limitation, any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such short sale) or any capital contribution to any other Person; (b) the making of any deposit with, or loan or capital contribution to, assumption of Debt of, purchase or other acquisition of any other Debt or equity participation or interest in, or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property to such Person); or (c) the entering into of any Guarantee of, or other contingent obligation (including the deposit of any Capital Stock to be sold) with respect to, Debt of any other Person and (without duplication) any amount committed to be loaned, lent or extended to such Person. Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

 

IP License Agreements” means (a) that certain Trademark License Agreement, dated as of the date hereof, by and between the Borrower and IP Licensor and (b) that certain Intellectual Property License Agreement, dated as of June 1, 2024 by and between Borrower and IP Licensor.

 

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IP Licensor” means Trina Solar Co., Ltd., a China corporation.

 

IRS” means the United States Internal Revenue Service.

 

Joint Lead Arrangers” means Standard Chartered Bank, Société Générale and HSBC Bank USA, N.A..

 

Landlord” means Tradepoint 45 West Owner, LLC.

 

Lender Parties” has the meaning specified in Section 10.18.

 

Lenders” means the Initial Lenders and any other Person that shall have become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

Lien” means any lien, mortgage, deed of trust, deed to secure debt, pledge, collateral assignment, security interest, charge or encumbrance of any kind. For the avoidance of doubt, “Lien” shall not include any netting or set-off arrangements under any Contractual Obligation otherwise permitted under the terms of this Agreement.

 

Loan Documents” means, individually or collectively, as the context may require, this Agreement, the Equity Contribution Agreement, each Interest Rate Hedge, the Upfront Fee Letters, the Agency Fee Letter, the Notes (if any), the Collateral Documents.

 

Loan Parties” means Holdings, Trina Blocker and the Borrower.

 

Local Account Banks” means, collectively, Wells Fargo Bank, N.A. and HSBC Bank USA, N.A.

 

Local Account DACA (HSBC)” means that certain Deposit Account Control Agreement dated as of the date hereof among HSBC Bank USA, N.A. and Borrower.

 

Local Account DACA (WF)” means that certain Deposit Account Control Agreement dated as of the date hereof among the Collateral Agent, Wells Fargo Bank, N.A. and Borrower.

 

Local Account DACAs” means, collectively, the Local Account DACA (HSBC) and the Local Account DACA (WF).

 

Local Accounts” means (i) the Deposit Account of the Borrower established at HSBC Bank USA, N.A. with account number 914029983, subject to the Local Account DACA (HSBC) and (ii) the Deposit Account of the Borrower established at Wells Fargo Bank, N.A. with account numbers 4941442378 and 4941442386, subject to the Local Account DACA (WF).

 

Management Services Agreement” means that certain management services agreement between the Sponsor (or an Affiliate of the Sponsor reasonably acceptable to each Lender), on the one hand, and a Permitted Holder (or an Affiliate of a Permitted Holder) or Holdings, on the other hand, in form and substance satisfactory to each Lender, such consent not to be unreasonably withheld, conditioned or delayed.

 

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Margin Stock” has the meaning specified in Regulation U.

 

Market Consultant” means Clean Energy Associates, or any replacement thereof of nationally recognized standing appointed by the Administrative Agent (at the direction of the Required Lenders) with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).

 

Market Consultant Report” means the report prepared by the Market Consultant, titled Trina Solar U.S. PV Solar Market Report, and dated as of April 19, 2024.

 

Marketing Services Agreement” means that certain Marketing and Services Agreement, dated as of the date hereof, by and between the Borrower and TUS.

 

Material Adverse Effect” a material adverse effect on (a) the business, operations, financial condition, assets or properties of the Borrower or TUS ( with respect to TUS, solely until the TUS’s commitment under the TUS Offtake Contract is reduced to zero), (b) the ability of the Borrower, Holdings or the Sponsor (solely until the Conversion Date) to fully and timely perform their respective material obligations under the Loan Documents, (c) the validity or enforceability of the Loan Documents or the ability of the Secured Parties to enforce the obligations or the material rights, remedies or benefits available to the Secured Parties under any Loan Documents or (d) the validity, priority or perfection of the Secured Parties’ security interests in and liens on the Collateral (subject to Permitted Collateral Liens).

 

Material Contract” means, individually or collectively, as the context may require, (a) each Construction Contract, (b) the Intercompany Supply Agreement, (c) the Intercompany Poly Supply Agreement, (d) the Poly Supply Agreement, (e) the Marketing Services Agreement, (f) the Real Property Lease, (g) each Offtake Contract, (h) the IP License Agreements and (i) the Administrative Services Agreements, (j) each other contract or agreement (or series of related contracts or agreements) related to the revenues, expenses, construction, testing, maintenance, repair, operation or use, as applicable, of the Project entered into by any Loan Party and any other Person that either (i) has an aggregate contract value over its term in excess of $5,000,000 or (ii) the termination of which could reasonably be expected to result in a Material Adverse Effect and (k) in each case any credit support instruments provided under such contracts. “Material Contract” does not include off-the-shelf commercial software licenses.

 

Material Contract Counterparty” means, individually or collectively, as the context may require, (a) each Construction Contractor, (b) the Sponsor (as counterparty under the Intercompany Supply Agreement), (c), the Intercompany Poly Supplier, (d) the Poly Supplier, (e) TUS (as counterparty under the Marketing Services Agreement), (f) the Landlord, (g) each Offtaker, (h) the IP Licensor, and (i) each counterparty to any Material Contract described in clause (j) of the definition of “Material Contract”.

 

Material Debt” means (a) any outstanding Debt of any Loan Party (other than Debt under the Loan Documents), (b) at any time prior to the date on which TUS’s commitment under the TUS Offtake Contract is reduced to zero, any outstanding Debt of TUS in an aggregate principal amount exceeding $10,000,000 and (c) any outstanding Debt of the Sponsor (other than Debt under the Loan Documents), individually or collectively, in an aggregate principal amount exceeding $30,000,000 .

 

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Material Real Property” has the meaning specified in Section 6.15.

 

Maturity Date” means December 31, 2029.

 

Measurement Period” means, as of any date of determination, the most recent period of four (4) consecutive Fiscal Quarters of the Borrower ended on or prior to such date of determination; provided that the first Measurement Period shall commence on the first full Fiscal Quarter following the Conversion Date. For purposes of determining the Debt Service Coverage Ratio for (a) the period of the first full Fiscal Quarter following the Conversion Date, Cash Available for Debt Service and Debt Service will be deemed to be equal to Cash Available for Debt Service and Debt Service, respectively, for such Fiscal Quarter multiplied by four, (b) the period of the first and second full Fiscal Quarters following the Conversion Date, Cash Available for Debt Service and Debt Service will be deemed to be equal to total Cash Available for Debt Service and Debt Service, respectively, for such Fiscal Quarters multiplied by two and (c) the period of the first, second and third full Fiscal Quarters following the Conversion Date, Cash Available for Debt Service and Debt Service will be deemed to be equal to total Cash Available for Debt Service and Debt Service, respectively, for such Fiscal Quarters multiplied by 4/3.

 

Model Auditor” means PricewaterhouseCoopers International Limited, or any replacement thereof of nationally recognized standing appointed by the Administrative Agent (at the direction of the Required Lenders) with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).

 

Model Auditor Report” means the report prepared by the Model Auditor and titled Trina Model – Model Diagnostic.

 

Moody’s” means Moody’s Investors Service, Inc. and any generally recognized successor rating agency.

 

Mortgaged Property” has the meaning specified in the Deed of Trust.

 

Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.

 

Net Cash Proceeds” shall mean, with respect to any Disposition permitted pursuant to Section 7.06 (excluding any Disposition permitted pursuant to Section 7.06(g) or any Disposition in respect of any Excluded Assets), the incurrence or issuance of any Debt by the Borrower (other than Debt permitted to be incurred or issued pursuant to Section 7.03), any Casualty Event or Event of Eminent Domain or any termination payment or performance liquidated damages payment under any Material Contract, the aggregate amount of cash payments received by the Borrower as consideration therefor or in connection therewith; provided that Net Cash Proceeds shall be net of (i) the amount of any reasonable costs, expenses, commissions and fees paid or payable by or on behalf of the Borrower in connection with such Disposition, Debt incurrence or issuance, Casualty Event or Event of Eminent Domain or termination payment or performance liquidated damages payment, (ii) any Taxes paid, payable or reasonably expected to be payable by Borrower as a result of such Disposition and, without duplication, any Permitted Tax Distributions arisi